Litigation Strategy

Litigation Strategy

Description

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 schoolchildren 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. 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.

Source Publication

Encyclopedia of the American Constitution

Source Editors/Authors

Leonard W. Levy, Kenneth L. Karst, Dennis J. Mahoney

Publication Date

1986

Edition

1

Volume Number

3: JACK—RUTL

Litigation Strategy

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