The Washington Post

Sometimes, you don’t want your case to make it to the Supreme Court


There were 234 winners at the Supreme Court last week: The justices decided not to take their cases.

It’s usually cast the other way — the lucky ones are considered to be the small subset of the thousands of petitioners who have their cases granted. The justices have almost total discretion over their docket, and last term they picked 77 cases for oral arguments out of about 7,500 petitions filed.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

But for every prayer sent up by a losing party appealing a case, there is a winner who hopes — and sometimes, works hard to ensure — that it goes unanswered.

“If you’ve won [in the court] below, there’s absolutely no reason whatsoever to want the Supreme Court to take your case,” says Washington lawyer Lisa S. Blatt, one of the top practitioners at the high court.

And for industry, government and interest groups beyond the parties in the case, there’s another concern: what the justices might do with an issue if they take it.

There were recently reminders of this involving two of the most controversial issues the justices confront: abortion and civil rights.

Abortion rights supporters were relieved last week when the justices announced that they would not pursue a case the court tentatively had granted this summer.

The issue was state efforts to restrict the use of mifepristone, commonly referred to as RU-486, which is used to induce abortions early in pregnancies. Oklahoma’s highest court had ruled part of that state’s law unconstitutional. But its reasoning was scant, and the Supreme Court asked it for a more detailed ruling on what the law meant.

When the Oklahoma justices said the law was so broad it would effectively put an end to nonsurgical abortions and restrict the use of drugs beyond mifepristone, the U.S. Supreme Court decided, without explanation, to let the ruling stand.

On civil rights, negotiations are underway to settle a case that the court had selected, with arguments scheduled for next month.

It involves an almost decade-long legal battle over a redevelopment project in the township of Mount Holly, N.J., near Philadelphia. Local authorities declared as a blight the neighborhood of Mount Holly Gardens — a poor area near downtown where most who owned or rented homes were black or Hispanic — and moved to raze the area and redevelop it.

About 60 of the 300 post-World War II residences are still occupied.

The residents sued, saying the township’s action violated the Fair Housing Act, and a unanimous panel of the U.S. Court of Appeals for the 3rd Circuit said they could go forward with their lawsuit.

The victory came under an important civil rights doctrine known as disparate impact. It means that plaintiffs don’t have to prove that the actions taken against them were a result of intentional discrimination. It is enough to show that minorities suffer disproportionately from the policy.

The fight is shaping up as a major civil rights battle, with a combined 30 amicus briefs filed. On one side are business interests such as bankers and conservative legal groups that say Congress never intended disparate impact to be part of the Fair Housing Act.

On the other side are the Obama administration and civil rights groups that say the doctrine is needed to protect minorities. Every appeals court that has looked at the issue has approved disparate impact suits, they say, so Congress would surely have changed the law by now if it was not what lawmakers intended.

But the case might not get to the justices. Settlement negotiations are underway, although a presentation scheduled for the town council last week was delayed.

If the case is settled, it will be the second time the justices have been thwarted in their desire to consider the issue. Under encouragement — some said pressure — from the Obama administration, a disparate impact case from Minnesota also settled before the court could hear it.

Solicitor General Donald B. Verrilli Jr. tried to keep the court from taking the Mount Holly case as well. But that is not unfamiliar territory for those who often disagree with a court that is becoming more conservative.

ACLU Legal Director Steven R. Shapiro says he spends more time filing “briefs in opposition” than trying to persuade the court to take a case.

“That’s not a phenomenon of the last several years — it’s been true for most of my professional career,” Shapiro says with a laugh. “There are many issues where it is hard sledding if you’re a civil rights lawyer.”

Matters of race and religion are particularly tough for his organization in the current court, he said.

On the other hand, free speech issues generally are good for the ACLU, he said.

In rare cases, both sides of a legal battle agree that their fight is one that only the Supreme Court should decide; Blatt mentioned the Affordable Care Act as an example.

And sometimes a decision not to hear a specific case doesn’t mean the court won’t find another more fitting.

It seems likely, for instance, that states’ efforts to restrict abortion will eventually find their way to the court. And even if the Mount Holly case settles, there are other disparate impact cases that can take its place.

It is clear that there are four justices — the minimum necessary to hear a case — who are eager to consider the issue.

For more High Court columns, visit

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