WASHINGTON — For activists who seek to change the law, nothing works better sometimes than losing a big case in the Supreme Court.
This year saw two small, public-interest law firms convert losses in the high court into wins in the court of public opinion.
The Institute for Justice, a libertarian group based in Arlington, Va., made a cause out of the "abuse of eminent domain," referring to the government's power to seize and condemn private property.
Legal losses-turned-wins: An article in Wednesday's Section A about how activists' Supreme Court defeat can nonetheless propel their cause said the Center for Individual Rights had sued the University of Michigan and its law school on behalf of Jennifer Gratz and another white student, and Gratz was described as the unsuccessful plaintiff. In fact, the center's challenge to university racial policy involved two cases, one of which bore Gratz's name. The Supreme Court took plaintiff Gratz's side in what was a narrower case; it rejected the other, broader effort to overturn affirmative action at the school.
The Center for Individual Rights, a Washington law firm dedicated to "getting government out of the business of classifying citizens based on race," targeted affirmative-action policies at colleges and universities.
After losing eminent domain and affirmative action cases before the Supreme Court, the two law firms saw their causes taken up in state legislatures and ballot initiatives, where victories at the state level essentially skirted the nation's highest court.
The eminent domain cause took off two years ago when Institute for Justice lawyers appealed to the high court -- and lost -- in the case of Susette Kelo, a nurse from New London, Conn., who was fighting to keep her small, pink, wood-frame house with its view of Long Island Sound. City officials had condemned her house, as well as those of her neighbors, because they wanted to redevelop the area with upscale townhouses, a shopping area and a hotel.
The Institute's lawyers argued the Constitution allows the government to seize property only for "public use," such as to build a road, but not for private development. But in a 5-4 decision, the justices said local officials may "promote economic development" in a "distressed" community, even if it means condemning homes.
The Kelo ruling set off a political earthquake, and the tremors were felt across the country. On Dec. 18, the Institute reported that 34 states had tightened their laws since the June 2005 decision and made it harder for city officials to take private property for development.
"This is a remarkable and historic response to the most reviled Supreme Court decision of our time," the Institute said.
In the affirmative-action case, Center for Individual Rights lawyers sued the University of Michigan and its law school on behalf of Jennifer Gratz and another white student who were denied admission. Their lawyers compiled data showing that minority applicants often were accepted with grades and test scores lower than those of rejected white applicants.
