Even a Supreme Court loss can propel a cause

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.

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.

The litigation put a spotlight on how the university admissions policies work in practice. And after several years of litigation, the challengers succeeded in getting the issue before the Supreme Court. But to their surprise, they lost in a 5-4 decision in 2003. The justices said they would not stand in the way of university policies that seek to bring about “diversity” in higher education.

Undeterred, a group in Michigan decided to challenge the university’s policy at the ballot box, and Gratz, the unsuccessful plaintiff, was chosen as the leader of the effort.

The Michigan group modeled its measure after California’s Proposition 209, the 1996 ballot measure that bars public employers and state colleges from discriminating against, or granting “preferential treatment,” to people based on their race, ethnicity or gender.

On Nov. 7, voters in Michigan approved the constitutional amendment by a 58-42% margin.

“In a single stroke, the citizens of Michigan repudiated the U.S. Supreme Court,” crowed Terence Pell, the president of the Center for Individual Rights.

Both cases illustrate how litigation can frame an issue in a way that captures the public’s attention. In the Gratz case, it was an application process that treats students differently based on their race. In the Kelo case, it was the specter of a owner losing her modest home to make way for upscale housing.

“They created an emotional tsunami,” said Don Borut, executive director of the National League of Cities, of the Institute and its allies. “They created the impression -- the false impression -- that everyone’s home is threatened. We believe there has been an extreme overreaction in terms of legislation.”

Not surprisingly, Dana Berliner of the Institute of Justice sees it differently. She did a nationwide report on how eminent domain has been misused. She concluded that city officials often allied themselves with developers and used their power to seize small businesses and modest homes to make way for big-box retailers, shopping malls, hotels and condominiums.

The Kelo case simply put a national spotlight on the issue, she said. This fall, surprised officials of the National Conference of State Legislatures said eminent domain had replaced gay marriage and abortion rights as the most popular topic for ballot measures.

In more than half the states, legislatures tightened the rules for seizing private property. Meanwhile, state supreme courts in Michigan and Ohio sharply restricted seizures of homes.

And in November, voters in 10 states approved measures that say homes and businesses may not be taken by the government for private development. The states were Arizona, Florida, Georgia, Louisiana, Michigan, Nevada, New Hampshire, North Dakota, Oregon and South Carolina.

In California, lawmakers made only modest changes, emphasizing that property can be condemned for redevelopment only in blighted areas. But voters narrowly rejected Proposition 90, which would have limited eminent domain but also required government agencies to compensate property owners for zoning limits on development.

Critics often fault the court for “judicial activism,” for broadly interpreting the Constitution to strike down the laws or decisions of state or local officials. In the eminent domain and affirmative action cases, the justices in the majority were sharply criticized for doing the reverse. They stood back and deferred to the decisions of local and state officials.

In the affirmative-action case the justices said they were reluctant to set a national rule that would forbid college and university officials to consider a minority student’s race or ethnicity during the application process. But their decision did not require the use of affirmative action, and it left Michigan and its voters with the option of changing the law.

In the Kelo case, the justices said they were reluctant to decide which public projects fit the definition of a “public use.” (The 5th Amendment says “private property [shall not] be taken for public use, without just compensation.”)

Justice John Paul Stevens emphasized that the court was not endorsing the seizure of homes or businesses for redevelopment. “Nothing in our opinion precludes any state from placing further restrictions on the exercise of its taking power,” he wrote.

That is all the Institute for Justice needed to turn a loss into a win.

“Since then,” said John Kramer, a vice president of the group, “we have been arguing and winning in the court of public opinion.”

david.savage@latimes.com