Roberts alone in dissent as Supreme Court backs student in religious-speech case

Justice Clarence Thomas said the request for nominal damages was enough to keep the suit alive, in an 8-to-1 opinion.

But in his dissent, Roberts said that risks a “major expansion” of the federal courts’ role, and that once the college stopped its allegedly unconstitutional actions, there was nothing more for Uzuegbunam and fellow student Joseph Bradford to gain.

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“Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes,” Roberts wrote in a dissent that was exactly as long as Thomas’s majority opinion.

“Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice.”

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Justice Elena Kagan said that pressing such a claim can provide a “psychic satisfaction” for offenses on which it is hard to place a price tag, and that was the reason for Swift’s action: “She wanted to prove a point.”

But the 31-year-old megastar was unmentioned in Thomas’s opinion. Instead, Lord Chief Justice John Holt (1642-1710) and Supreme Court Justice Joseph Story (1779-1845) took center stage.

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The English and American jurists’ opinions, Thomas wrote, provided the precedents for the Supreme Court to find that while nominal damages are small, they are “concrete” and “can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”

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Uzuegbunam sued the college in 2016, after campus police stopped him from handing out religious tracts on the school’s plaza in Lawrenceville, northeast of Atlanta, saying “expressive activity” was allowed only in two designated speech zones on campus. Uzuegbunam reserved one of the spots.

But college officials stopped him from speaking there, too, saying there were complaints.

Uzuegbunam, joined by Bradford, who had also wanted to speak about his religion, sued in federal court, alleging among other things a violation of their rights to free speech and free exercise of religion.

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Before the case was decided, Georgia officials revoked not only the restrictive speech regulations at Uzuegbunam’s school, but at all others in the state system.

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A judge declared the case moot, and a panel of the U.S. Court of Appeals for the 11th Circuit agreed.

Uzuegbunam’s appeal to the Supreme Court was endorsed by a range of groups that often find themselves at odds: the Trump administration and the American Civil Liberties Union, for instance, and conservative legal religious organizations such as the Becket Fund for Religious Liberty along with the American Humanist Association.

“Groups representing diverse ideological viewpoints supported our clients because the threat to our constitutionally protected freedoms doesn’t stop with free speech rights or a college campus,” said Uzuegbunam’s lawyer, Kristen Waggoner of the conservative legal organization Alliance Defending Freedom.

When government officials “engage in misconduct but face no consequences,” she said in a statement, “it leaves victims without recourse, undermines the nation’s commitment to protecting constitutional rights, and emboldens the government to engage in future violations.”

Roberts noted that “notwithstanding the Court’s protestations to the contrary,” nominal damages in the past have been awarded by courts as a consolation prize and a “hook to allow prevailing plaintiffs to at least recover attorney’s fees and costs.”

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The chief justice said his colleagues can limit the ruling in the future by finding that “where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.”

He said that “may ultimately save federal courts from issuing reams of advisory opinions.”

Roberts’s lone dissent sent Supreme Court watchers searching for a precedent. Adam Feldman, who closely tracks the court’s actions at his blog, Empirical SCOTUS, said it appeared to be the first time Roberts has taken such a step.

The chief justice seemed to acknowledge that in a parenthetical aside when he noted that the 1703 Lord Holt opinion the majority cited was itself a dissent.

“No shame there,” Roberts wrote.

The case is Uzuegbunam v. Preczewski.