Earlier this month, the Court announced that it would review two cases involving same-sex marriage:  United States v. Windsor, a challenge to the constitutionality of the federal Defense of Marriage Act, and Hollingsworth v. Perry, a challenge to the constitutionality of California’s Proposition 8.  As might be expected, these cases have been covered widely in the press, but they have also focused new attention on a litigation practice with a long, if sometimes controversial, pedigree: the use of test cases to secure rulings by the Justices.

A test case is typically one in which an interest group or an individual wants to create a challenge to a law in the hope of having the law overturned. The effort can be substantial:  the group or individual spearheading the challenge must – among other things – find the right plaintiff(s), determine the strongest legal arguments, and pick the proper judicial forum to create circumstances in which the issue will be teed up for decision. Although this can certainly happen in any court, for our purposes, let us consider the practice of test cases designed to get to the United States Supreme Court.

As SCOTUSblog publisher Tom Goldstein noted in a column posted on December 5, both the California Proposition 8 case and the Defense of Marriage Act case from the Second Circuit are the product of test case strategies designed to try to force the Supreme Court to consider the constitutional status of same-sex marriage. The strategy of getting the cases before the Court obviously worked, and both are likely to be argued in late March.

Will the final outcome vindicate the strategy followed by proponents of same-sex marriage? That, of course, remains to be seen. But the practice of using test cases in the Supreme Court should be of interest to students of constitutional law and history, those in Supreme Court seminars, future public interest lawyers, and other potential future litigators of all types.

Along the historical landscape of Supreme Court test cases, the terrain is marked by some notable failures as well as major successes.

One of the most notable failures is the famous case of Plessy v. Ferguson, which held that the practice of “separate but equal” railroad cars for whites and blacks in Louisiana did not violate the Equal Protection Clause of the Fourteenth Amendment. Like many Southern states, Louisiana passed a separate transportation law in 1890, one of a number of so-called Jim Crow laws designed to impose racial segregation throughout the region.

In 1891, a Citizens’ Committee to Test the Constitutionality of the Separate Car Law was formed, and Albion Tourgee – a prominent northern lawyer, novelist, and former Union soldier – was hired to handle the matter. The first test case involved Daniel Desdunes, who illegally sat in a whites-only rail car bound for Alabama. His case was dismissed, however, because the Louisiana Supreme Court ruled in a separate case that the state’s separate-car law interfered with interstate commerce if applied to a train traveling beyond the Louisiana state line.

But for the dismissal, law students today might know the name Desdunes, rather than Plessy. But Homer Plessy was selected to follow Desdunes, and on June 7, 1892, he rode in a whites-only car on a train making an intra-state trip. After the lower courts ruled that the Louisiana law was not unconstitutional, the test case was teed up for the Supreme Court, which also upheld the law by an eight-to-one vote.

Curiously, Tourgee seems to have known that a Supreme Court victory was an uphill fight, although he hoped for a better result than the lone vote of Justice John Marshall Harlan. So was the test case a mistake? Some commentators have downplayed its influence, arguing that all it did was leave in place segregation laws that were already on the books. But others have argued that the Plessy decision cemented existing separation and fueled greater racial segregation and attitudes of white supremacy for decades to come.

Besides demonstrating the potential for test cases to backfire, the Desdunes and Plessy cases illustrate an occasional point of controversy, as well. Lawyers generally advance all legal arguments that may serve their client’s interests, the goal being to win with whatever point is successful. But in a test case, the goal is to make sure that the Court decides the case on the focal issue, rather than a peripheral question. From the perspective of an ordinary case, the ruling in favor of Desdunes may have been a victory, but in test case terms, it was at least a delay if not a setback.

There are other notable failures in the history of test cases. The Supreme Court’s ruling in Bowers v. Hardwick in 1986 began as a test case of gay rights in Atlanta but ended, instead, with a ruling that gay adults did not have a right to engage in consensual sodomy. It took seventeen years for the Court to reverse the decision with its ruling in Lawrence v. Texas.

The Bowers case began when police arrived at the home of Michael Hardwick because he had failed to appear for a hearing on a charge of having an open alcohol container in public. A houseguest let police in. They found Hardwick in the bedroom having sex with another man and arrested him for violating the Georgia law against sodomy. The case was not prosecuted, however, and Hardwick in turn sued to challenge the constitutionality of the statute. A federal district court in Atlanta dismissed the case, finding no valid legal claim, but the U.S. Court of Appeals for the Eleventh Circuit ordered a trial, ruling that Hardwick had a fundamental right to privacy that the state could only regulate if its reasons passed strict scrutiny – a compelling justification and a means that was narrowly tailored.

The Supreme Court reversed by a five-to-four vote, ruling that the issue was not a right to privacy but rather the absence of any right to engage in homosexual sodomy. Was the test case a mistake? Here too the answer is mixed. The ruling preserved the anti-sodomy laws in some states and strongly reinforced anti-gay attitudes in some parts of the nation. But the decision did not spur large numbers of sodomy prosecutions, and it may well have spurred the growth of the movement for gay rights that led to Lawrence in 2003, to recognition of same-sex marriage by nine states today, and brought the same-sex marriage issue to the door of the Supreme Court.

There are many more test cases that made their way to the Supreme Court, some well-known. The Court heard not one but four cases brought by Japanese Americans who were sent to World War II internment camps. In 1943, in Hirabayashi v. United States and Yasui v. United States, the Justices upheld the curfew imposed on Japanese Americans; in 1944, in Korematsu v. US, they upheld the relocation to internment camps.  Also in 1944, in the fourth case, Endo v. United States, the Court ordered the release of Mitsuye Endo from an internment camp because the government conceded her loyalty to the United States. While the import of these decisions largely upheld the government’s World War II policies, the Court’s rulings helped to frame continuing debates about the scope of governmental authority in times of war or national security emergency and the government’s use of race or national origin to classify individuals. And decades, later the nation would apologize for the treatment of Japanese Americans and offer a monetary payment to surviving families.

No discussion of test cases would be complete without a discussion of Brown v. Board of Education and the strategy and litigation that led to the decision in 1954. Led first by former Howard Law School Dean Charles Hamilton Houston and then by civil rights lawyer, later Justice, Thurgood Marshall, the NAACP Legal Defense Fund (LDF) pursued a patient plan of incremental test cases. The strategy was, first, to demonstrate through a series of cases that the “separate but equal” formula of Plessy v. Ferguson produced consistently unequal results in public education. Then, believing the time had come to push to overrule Plessy, the LDF lawyers had to persuade parents and children in local communities to be willing to serve as plaintiffs, at considerable personal risk.

The rest of the story is well-known. The cases from South Carolina, Kansas, Delaware, and Virginia became the unanimous ruling in Brown, and the District of Columbia case yielded the companion decision of Bolling v. Sharpe. The Court ruled that separate but equal facilities would never be equal and violated the constitutional requirement of “equal protection of the laws” in the Fourteenth Amendment and implicit in the Fifth Amendment.

On the long, historic trail of Supreme Court test cases, Brown is the premier landmark for the now legendary strategy and successful outcome. It remains to be seen just where the same-sex marriage cases will fit on this landscape.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Test cases, SCOTUSblog (Dec. 20, 2012, 11:48 AM), http://www.scotusblog.com/2012/12/scotus-for-law-students-sponsored-by-bloomberg-law-test-cases/