Opinion - 'Winning by losing' — Trump's sneaky plan to govern by gaming the courts
The recent oral argument in the Supreme Court caseTrump v. CASA, Inc.suggests the administration may be pursuing a clever approach to draining judicial precedents of any meaning. Call it "winning by losing." If left unchecked, winning by losing may prove to be an effective way of undercutting judicial decisions and thus the law embodied in those decisions. The approach also establishes a connection between seemingly unrelated actions—the administration's executive order rejecting the Court's birthright citizenship precedents, its orders against (and agreements with) law firms, and its opposition to broad injunctive relief. Winning by losing starts with a policy transparently contrary to precedent, such as the birthright citizenship and law firm executive orders. District court losses are inevitable, but the brazen disregard of precedent signals that the administration does not care if it loses. It can deny appellate courts and the Supreme Court the chance to do anything about its defiance of precedent just by not appealing. That works so long as the administration can limit the scope of its losses to the named parties, which was the position it defended last week. Intimidating law firms limits the number of lawyers willing to bring individual cases. What evidence supports this hypothesis? The text of theexecutive orderrejecting the Supreme Court's birthright citizenship precedents and the text of the executive orders targeting law firms is the best proof. In each case the text proclaims the administration's intention to pursue policies openly at odds with principles established in case law. The overt disdain for these principles is part of the point of the orders. Further evidence is found in the administration's continued issuance of orders targeting law firms after the district court enjoined enforcement of the order against Perkins Coie. The subsequent orders were not materially different from the first one. They signaled that losses in individual cases will not compel general adherence to precedent. At argument last week the administration was coy about whether it would follow circuit precedent even within a circuit. Losses don't trouble it much. Even though the government has lost every argument it has faced on law firm executive orders, more firms have capitulated to the administration than have prevailed in court, and an even greater number of firms have been intimidated into remaining silent. So even though the law firm executive orders are flagrantly unlawful, Trump is crushing the lawyers. That is a discredit to the profession, but it is also proof of concept for winning by losing. The birthright citizenship order, and immigration-related issues more generally, may seem structurally different from law firm executive orders because the latter target only specific firms while the former targets a class of people. But the administration's position on injunctions connects the two types of orders. At argument last week, Justice Kagan rightly noted that the government's position on universal injunctions would tend to insulate unlawful action from judicial review. If the government's view prevails, the government could issue executive orders contrary to precedent, lose every case it litigated, continue enforcing the orders against everyone other than the named parties, and no appellate court would get the case. The prevailing party could not appeal, and the government would just take individual losses. People who could afford to litigate would get the benefit of the court's precedents while everyone else would be subjected to unlawful executive action. If the Supreme Court endorses the government's position on injunctions, then either an army of lawyers will be needed to defend the court's precedents or cases will have to proceed in the costlier and slower form of class actions (which the government likely would oppose). This is where the law firm orders come back into play. Historically large law firms would be a principal source of such an army of lawyers. Defending birthright citizenship in individual cases would be perfect for associates eager to pursue public interest work and get some court time in some easy cases. But the executive orders and their very real chilling effect have sidelined many firms. The net effect of the government's actions is to increase the cost of enforcing the court's precedents while weakening the institutions historically willing to bear that cost, thus creating opportunities for effective defiance. There are problems with universal injunctions. It does seem odd that the government could win 99 cases, lose one, and be in the same position as if it had lost all. But it would be equally odd if the government lost every litigated case but, through procedural devices designed to increase cost and delay, and through intimidation of firms, ended up denying the benefits of precedents to most people to whom the rulings applied. Winning by losing is both a clever strategy and a real threat to a system of law that depends on judicial decisions. To the extent it succeeds, precedents, including the Supreme Court's, lose much of their effective force. How much force they will lose remains to be seen. David McGowan is the Lyle L. Jones Professor of Competition and Innovation Law at the University of San Diego School of Law. Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. For the latest news, weather, sports, and streaming video, head to The Hill.
Opinion - 'Winning by losing' — Trump's sneaky plan to govern by gaming the courts The recent oral argument in the Supreme Court...
