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Monday, August 05, 2019

Judgments we like yielding precedent we hate

In a post on Friday, I mentioned Rosenberger v. Rector and Visitors of University of Virginia as a case in which a conservative victory (the Court held that the university could not deny student-activities funding to a religious organization) produced liberal victories in lower courts (holding that universities could not deny funding to LGBT organizations). In other words, the judgment in the case was great, but the judgment was accompanied by an opinion that established a principle that provided precedent for other courts to produce not-so-great judgments in later cases.

Consider this a bleg: I am looking for a particular situation--Case I established a general principle that yielded one outcome, then that general principle yielded a politically opposite outcome. Can people think of other examples of this, in either direction?  And are there examples outside of free speech/press? I think this would make an interesting study.

Posted by Howard Wasserman on August 5, 2019 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink


Back during the 80s and early 90s urban crime wave, majorities of minority communities in cities had come to scorn the expansive criminal defense rights under the Fourth and Fifth Amendments that the Warren Court had set forth, cognizant that the effect of these protections would aid black communities. I specifically recall a case from the mid 90s where the ACLU sued the Chicago Housing Authority after the CHA, with the support of a majority of CHA residents, announced they would be doing sweeps of the apartments for gang-related activity and items like drugs or illegally possessed firearms.

Here is a link providing the perspective of advocates for the CHA sweep:


Posted by: RComing | Aug 6, 2019 12:47:35 PM

Racial classifications being deemed "suspect" -- generally thought of as an apex victory for the civil rights movement -- being used to dismantle affirmative action programs and school integration programs.

I have an article, Sticky Slopes, which is entirely about circumstances where a prior "victory" acts to thwart rather than enable future social movement goals -- albeit the "victory" in question isn't always a judicial precedent.

Posted by: David Schraub | Aug 6, 2019 3:24:54 AM

Title IX being interpreted to (1) include hostile environment based on sex and (2) have a private right of action being used by accused male students to sue colleges.

Posted by: Biff | Aug 5, 2019 11:29:26 PM

Obviously Chevron for (most, these days) conservatives.

Posted by: Asher Steinberg | Aug 5, 2019 2:17:53 PM

Employment Division v Smith (no free exercise exemption from generally applicable laws) certainly falls into this category, and arguably for that reason, at least four current justices have suggested the case be revisited.

There are also second-hand stories that it is one of the few decisions Scalia lived to regret

Posted by: Mitică | Aug 5, 2019 1:14:53 PM

Strange to use "we" to describe "religious conservatives," and to call the LGBT decisions as "no so great." But whatever: Why do you assume that those who supported Wide Awake in Rosenberger--Michael McConnell; the religious students running Wide Awake; the Justices who voted in their favor; etc.--would be opposed to holdings that public schools can't defund LGBT groups? That's *consistent* with, and expected from, the principles they were urging. Indeed, they held up funding of "The Yellow Journal" at UVa as a case in point--they'd never in a million years have intended to suggest that UVa could refuse to fund that journal, or have expected lower courts not to apply Rosenberger to all manner of student groups, with varying viewpoints. It's not a case, in other words, of unexpected or unwanted outcomes.

Posted by: Marty Lederman | Aug 5, 2019 12:31:45 PM

The "we" could be anyone supporting the politics of the initial decision and opposing the politics of the later decision; with respect to Rosenberger, that "we" is religious conservatives, who were not pleased with the lower-court decision requiring funding of LGBT organizations.

Posted by: Howard Wasserman | Aug 5, 2019 12:19:48 PM

That is to say: Who is the "we" of your title?

Posted by: Marty Lederman | Aug 5, 2019 11:51:42 AM

Did you mean to write that "holding[s] that universities could not deny funding to LGBT organizations" were "not-so-great judgments"?

Posted by: Marty Lederman | Aug 5, 2019 11:50:07 AM

Here are a few: (1) the anti-commandeering principle (sanctuary-city litigation); (2) expansive Commerce Clause precedents permitting abortion to be regulated at the federal level; (3) conservatives' view that Brown stands for a rigid anti-classification principle; (4) Court's recent Bethune-Hill decision possibly preventing the House of Representatives from intervening to defend the constitutionality of federal enactments (ACA, FGM prohibition, etc.); (5) Baker v. Carr ("absence of judicially manageable standards") cited to prevent federal intervention in political gerrymandering.

Posted by: Anon | Aug 5, 2019 11:30:27 AM

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