CHIKE UZUEGBUNAM, ET AL., Petitioners, v. STANLEY C. PRECZEWSKI, ET AL., Respondents
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Andrew A. Pinson, Hashim M. Mooppan, Kristen Kellie Waggoner

John G. Roberts, Jr.: We will hear argument this morning in Case 19-968, Uzuegbunam versus Preczewski. Ms. Waggoner.

Kristen Kellie Waggoner: Thank you, Mr. Chief Justice.

May it please the Court: When Georgia Gwinnett officials stopped Chike Uzuegbunam and Joseph Bradford from sharing their faith, the officials caused concrete injuries.

Chike and Joseph lost forever the chance to get those days back and speak their message to their peers. No policy change can ever restore that lost opportunity.

And as this Court said in Carey, Stachura, and Farrar, the appropriate remedy to redress those past harms is nominal damages.

Nominal damages awards satisfy Article III.

Farrar explains that nominal damages provide relief on the merits, vindicate the plaintiff through an enforceable judgment, and modify the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay the plaintiff money, the classic Article III remedy for past injury.

A one, 10, or 100 dollar award satisfies Article III because it puts money in a plaintiff's pocket, no matter how it is labeled: compensatory, statutory, liquidated, or nominal. The Eleventh Circuit's outlier rule is a radical departure.

For centuries, English and American courts have awarded nominal damages when no future threat exists, even after a plaintiff waives compensatory damages.

Every circuit to address the issue does the same, even the Eleventh, until this recent decision. This Court should retain the long-standing rule.

It has not resulted in a glut of cases, and the alternative makes a mess of this Court's clear Article III jurisprudence. Nominal damages provide a remedy in many contexts, redressing injuries that transcend price tags, from unconstitutional searches and seizures to free exercise and due process violations, to censorship and compulsion of speech. These constitutional rights are invaluable, even when they don't result in quantifiable harm.

Yet, the officials urge you to treat them as worthless.

This Court should decline that invitation and reverse. I look forward to your questions.

John G. Roberts, Jr.: Counsel, I want to understand the scope of your argument first.

Say you go into court and say your rights have been violated.

The judge asks: How have you been damaged by that? Do you have any compensable injury? You say no.

And he asks: Is there any -- is that violation going to have any effect on you in the future? And you say: No, it's not going to be repeated.

And he says: Well, then you don't have standing, I've got to throw the case out.

And you say: Oh, well, throw -- throw in a buck. And then the judge is supposed to say: Yeah, well, everything's fine now? Doesn't that -- doesn't that make a mockery of our Article III requirements?

Kristen Kellie Waggoner: No.

Your Article III requirements require redress, and this Court has defined that as a personal tangible benefit. The amount of a label is not necessarily significant. What is significant is that the past injury is afforded some sort of redress, whether that --

John G. Roberts, Jr.: Well, but --

Kristen Kellie Waggoner: -- results --

John G. Roberts, Jr.: -- the only redress -- the only redress you're asking for is a declaration that you're right.

You want the court to say, you know, you're right.

And the dollar is simply -- is a symbol to represent that determination.

Kristen Kellie Waggoner: There is a declaration that every judgment award would provide, regardless of whether it's compensatory or statutory or liquidated.

But, in addition to the declaration, there does need to be redress for the past injury. Declare -- declaratory judgments do nothing for past injuries.

They only redress future --

John G. Roberts, Jr.: Well, but I would -- at page 18 and 19 of the Respondents' brief, they go through all the authorities and say that it's not that that dollar is a small amount of compensatory damages; it is in name only.

It is not damages at all.

Kristen Kellie Waggoner: That's not what this Court's cases have said or the common law.

And the significance of redressing the right, the fact that a past injury has occurred, money changes hands, as this Court said in Farrar, it modifies the defendant's behavior in a way that benefits the plaintiff.

And providing money damages of any amount is significant in that it provides redress for the parties and an enforceable judgment on the merits.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas.

Clarence Thomas: Thank you, Mr. Chief Justice. I'd like to turn to something slightly different, counsel.

In -- in Flanigan, the Eleventh Circuit precedent that -- that -- that the court followed, the court of appeals, the -- there was no enforcement of the -- of -- of the -- the ordinance involved. Does that make a difference here?

Kristen Kellie Waggoner: I think it makes this case even stronger than the Flanigan's ruling. And I think that is a basis of distinction, although even Flanigan's departs sharply from the majority of circuits. In terms of this case, this case, there is a past chill with Joseph Bradford's injury, and, certainly, silencing Chike twice in a public place where he had a right to speak is an injury all by itself.

Clarence Thomas: So we have said -- and this is somewhat a different version or similar to the Chief Justice's concern -- we've said that -- that an injury has to be real and substantial. But, if you're only asking for a -- a dollar or nominal damages, doesn't that seem to undermine the real and substantial requirement?

Kristen Kellie Waggoner: I don't think so. Congress has held that under Section 1983 the vindication of civil rights is so significant that it did away with the amount in controversy. And this Court has held that vindicating constitutional rights is of the highest importance and that it is an injury in and of itself to have the government engage in misconduct and not redress that injury, no matter how insignificant the damage award might be.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Good morning.

Well, as -- as you are aware, Congress passes lots of statutes and they have tens of thousands of words, and people frequently think that one new set of words is -- is unconstitutional at least as enforced.

We're not supposed to give advisory opinions. But, if somebody comes in in the con -- course of conduct under the statute or what they're going to follow, why -- why -- is not going to be done anymore. It's the same question as the Chief's: Why -- why isn't that just an advisory opinion? And you can say, well, he's hurt.

All right.

Is Bradford hurt? I see the first part, the first plaintiff.

What about Bradford?

Kristen Kellie Waggoner: Bradford is hurt.

And in terms of the Court filtering out cases that are frivolous or where there is an advisory opinion --

Stephen G. Breyer: No, no, not -- not frivolous.

How -- if Bradford is hurt, who wouldn't be? That is, give me an example of a case where he says this is unconstitutional.

They think it could be applied to me.

I think it's -- I think it is unconstitutional.

And I'm hurt because I -- I -- I -- I'm a school teacher and this sets up situations in the school which are unconstitutional, and they're not going to be done anymore. How does he have a concrete injury? Where is his concrete injury?

Kristen Kellie Waggoner: The concrete injury comes when there's a past chill and there's a specific intent that is demonstrated in the pleadings that meets the standard in this Court's holding in SBA List. For a 12(b) motion, which this case is on, the general allegations are sufficient to establish the facts in the case, although, at a later stage, a summary judgment could be -- could be considered by the Court.

But Joseph had a specific intent here, and Chike certainly does.

Stephen G. Breyer: Bradford, why, why?

Kristen Kellie Waggoner: He had a specific intent to engage in the speech and to share his faith on the campus.

He was made aware of how the -- how the school threatened Chike with discipline, and his speech was chilled because he didn't want to receive expulsion or suspension or some other form of discipline by engaging in these conversations.

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: You have said that nominal damages serve to vindicate a past violation of a constitutional right.

And it would be helpful to me if you could perhaps explain more specifically what you mean by the vindication of a constitutional right that was violated. Do you mean simply a statement that there was a violation, which sounds a lot like an advisory opinion, or do you mean the award of some damages for a real concrete violation that can't be easily monetized? So, if a person is told you cannot speak about a certain subject and that's a violation of a constitutional right, there may not be any way to monetize the -- the violation -- the -- the harm that is awarded to the person, but is the theory that nominal damages assign a certain monetary value to this harm that can't easily be quantified in monetary terms?

Kristen Kellie Waggoner: That's precisely the theory.

And it's the holding that the Court reached in Carey and Stachura and the lower courts have followed.

It's that nominal damages vindicate the constitutional violations by entering the judgment, by requiring the payment when other damages are not quantifiable. It's similar to statutory or liquidated damages, where there isn't necessarily quantifiable damages in those instances, but there's no question it meets Article III.

Samuel A. Alito, Jr.: Well, then the challenge for you is to show that early English and American nominal damages cases were based on that theory. Now Respondents say that they fall roughly into two categories: cases where nominal damages served as prospective relief from ongoing or future harms and cases where they were merely a consolation prize for failing to prove compensatory damages. Very briefly, what would be your best case or your best cases to show that that's an -- an incorrect understanding of the common law situation?

Kristen Kellie Waggoner: There are hundreds of cases that demonstrate that, including Christian versus Hooper, delayed writ executions, Burns versus Elrod, which involve false imprisonment, multiple cases involving mistrained staff, like Thompson versus New Orleans, as well as Dougherty versus Munson, which involved a legal warrant.

John G. Roberts, Jr.: Justice --

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: -- Sotomayor.

Sonia Sotomayor: Counsel, the government, at page 30 of its brief, says that if a defendant moved for entry of judgment on a plaintiff's nominal damages claim, "a district court" -- and I'm quoting -- quoting them -- "should enter judgment on the basis of the defendant's concession alone, without adjudicating the merits of the constitutional claim." Your reply brief didn't address that argument by the government directly.

Do you think that's possible? And, if it's not, why not?

Kristen Kellie Waggoner: I -- I believe that -- is your question related to whether entry of judgment would be on the merits?

Sonia Sotomayor: Well, that's the question.

If no, how about if the defendant deposits a dollar in an account payable to your clients, and the district court enters judgment on that basis? Would your claim then be moot? That was what the government was arguing.

Kristen Kellie Waggoner: I believe that's an open question in this Court following Campbell-Ewald.

Certainly, an offer in and of itself wouldn't be sufficient, but whether a tender would be sufficient is something this Court hasn't decided.

Sonia Sotomayor: Well, if that --

Kristen Kellie Waggoner: If --

Sonia Sotomayor: -- if it's a tender, do you -- what would require that tender to be more than the compensable damage of one dollar? Would you require an admission of liability as well? And what in our case law would require that?

Kristen Kellie Waggoner: Certainly, a full tender of the relief that the plaintiff requested would involve an enforce -- a judgment that would be entered on behalf of the plaintiff, as well as the damages, reasonable attorney's fees and costs. What the form of that judgment might look like seems to be in the judge's discretion. Neither party, I think, would have a right to insist on a disclaimer of an admission of liability, but that would be up to the district court's discretion.

But I do think that's an issue this Court should have briefing on to sharpen the issues in those instances.

Sonia Sotomayor: Finally, counsel, on the Bradford claim, there was never enforcement against him, so what was the injury? If the government doesn't know that he wants to speak and denies that opportunity, what's the injury?

Kristen Kellie Waggoner: The injury --

Sonia Sotomayor: It may not be that his case is -- is -- is moot, but it may be that he hasn't suffered a First Amendment injury.

Kristen Kellie Waggoner: That may well be.

I think his injury was that his speech was chilled, and he would satisfy this Court's test in SBA List, but that isn't the issue that this Court would need to decide today.

I think that proves the point that injury-in-fact essentially ferrets out cases that may be advisory in nature or where a concrete and particularized harm hasn't been proven.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: Ms. Waggoner, are -- are you saying that nominal damages are a form of compensatory damages, or are you saying something else?

Kristen Kellie Waggoner: No, they're not a form of compensatory damages, although I don't think that undermines the argument.

I think that they are compensation in the sense that they are providing money to reflect the fact that damage has been done. But the amount of money pales in comparison to the harm.

It's not that the dollar means so little; it's that the violation means so much.

That's why we award the damages in those instances.

Elena Kagan: And -- and -- well, I -- I guess, when you say that, how is it different from compensatory damages?

Kristen Kellie Waggoner: Well, compensatory damages have to be proven with specificity at trial.

They have to result in quantifiable harm. The value of free speech or the loss of procedural due process is nearly impossible to measure, as this Court has held.

And there are many reasons why plaintiffs may not want to assert compensatory damages, and those are very valid reasons.

And at the common law, you could even waive compensatory damages and seek nominal.

Elena Kagan: I guess I always thought that -- that our Article III requirements meant that people can't bring a suit for pure vindication alone, for just saying, you know what, I was right, you were wrong, for the psychic satisfaction that it gives to hear a court say that. And I guess I wonder, if this is not, by your own admission, compensatory damages, how is it that we're not in that world, where the -- where the suit really is one for, you know, just a -- a -- a declaration that somebody else committed a wrong?

Kristen Kellie Waggoner: Well, it is compensatory in that it's requiring a defendant to play -- to pay a plaintiff money.

And that's currency.

Chike can go out and buy a package of tracts for one, 10, or 20 dollars.

Certainly, in that sense, it is. But I think the overall purpose is that because we can't measure how harmful a violation of speech is or how harmful an unreasonable search and seizure is, we want to ensure that some redress is provided in that to the plaintiff for the past injury, and damages do that.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, counsel.

Your friends on the other side suggest that very little would be lost if -- if we required more than nominal damages for standing. They point out that your client initially had a compensatory damages claim as part of this lawsuit. Why aren't they right? Perhaps your client has scruples against seeking more than a dollar and others might as well, but why should the law care about that?

Kristen Kellie Waggoner: For several reasons. First of all, there are many plaintiffs who would be victims of government misconduct that may not be able to demonstrate compensable damages. In Chike's case, our argument was that he could because he drove to campus.

But think of a student who didn't drive to campus and who couldn't quantify that harm.

Neil Gorsuch: Well, presumably, they'd have bus fare or they could -- they could ask for the time that it took them to walk and some sort of compensation for that.

It -- it doesn't -- we have very imaginative lawyers. One thing the country doesn't lack for is imaginative lawyers with -- with imaginative damages theories.

Kristen Kellie Waggoner: Well, I would think that would be of some concern to the Court, that we would be creating a rule urging plaintiffs and their counsel to make up damages that they neither want nor need nor think they should qualify for when the government's rationale for changing this rule is that they believe it would be too costly, when, really, it will lead to protracted litigation. And unreasonable search-and-seizure cases, for example, a knock and announce, Justice Breyer recognized in Hudson that those are all nominal damages cases because it's so difficult to prove one-off violations in quantifiable ways.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, Ms. Waggoner.

I want to pick up on Justice Sotomayor's questions and try to figure out what's really at stake on this issue. Judge Jacobs in the Second Circuit opinion in Amato and Judge Henry in the Tenth Circuit opinion in Utah Animal Rights, their separate opinions, both suggested, as the government does here, that there's not much at stake because a defendant can always surrender to the judgment on the nominal damages claims when no other claims remain, and the district court simply enters judgment without adjudicating the merits. Justice Sotomayor asked you this, but I want to probe deeper on the answer.

Isn't that exactly right?

Kristen Kellie Waggoner: I don't think that there's -- I don't think that it's right in the sense that there isn't much at stake for someone like Chike, who is silenced on his campus, or someone subject to an unlawful announce -- knock and announce or a graduation speaker --

Brett M. Kavanaugh: No, my question --

Kristen Kellie Waggoner: -- who can't --

Brett M. Kavanaugh: -- my question is really, aren't Judge Jacobs and Judge Henry and the Solicitor General here correct that a defendant can surrender the judgment on a nominal damages claim when no other claims remain, and the district court enters judgment without adjudicating the merits? Isn't that correct?

Kristen Kellie Waggoner: I think that that's an open question before this Court, and how it would apply in a nominal damages situation would be something that the Court would want to consider.

But, certainly, if the Court --

Brett M. Kavanaugh: Okay.

And then --

Kristen Kellie Waggoner: -- held that that was full redress, then -- then that -- that would be acceptable, but full redress would need to be provided.

And Georgia's offered --

Brett M. Kavanaugh: And then --

Kristen Kellie Waggoner: -- absolutely nothing.

Brett M. Kavanaugh: -- and then, in that instance, what -- what's the attorney's fee situation? Because that may be what's really at stake here.

What -- what's the attorney's fee situation, in your view, with a nominal -- successful nominal damages claim?

Kristen Kellie Waggoner: I think the Court has discretion to determine what the attorney's fees are.

Under Farrar, the Court said that they would be a prevailing party.

But most courts at the lower levels have applied the Justice O'Connor factors to look at various aspects of the case, what was asked for, and the significance of the issue that was decided.

John G. Roberts, Jr.: Justice Barrett.

Amy Coney Barrett: Counsel, I want to go back to Justice Kagan's question.

When she asked you if nominal damages were a form of compensatory damages, you said no.

And, I mean, I -- I understand that they are not compensatory damages, you know, that they -- they are distinct categories and you can't prove them with specificity, can't prove nominal damages, I mean. But I would have thought that your argument depended on nominal damages being retrospective.

I -- I took your argument to be that they were compensation for a hard-to- quantify or impossible-to-quantify harm. So can you explain a little bit more why you are not describing to Justice Kagan that nominal damages are backward-looking relief?

Kristen Kellie Waggoner: All damages are backward-looking relief.

And I -- I think, in terms of the compensatory nature of the damages, they're compensatory in that they're redressing a harm that has occurred.

They're the same pedigree as compensatory damages, as well as statutory or liquidated damages.

Amy Coney Barrett: So it is your position that they are compensating for a -- an unquantifiable harm?

Kristen Kellie Waggoner: Absolutely.

As this Court articulated in Carey and Stachura, it's just that it's not a quantifiable harm.

And so that's the distinction I was making.

Amy Coney Barrett: Okay.

Now I want to go back to your colloquy with Justice Breyer, and he was talking to you about Bradford's claim and asking why that wouldn't be moot. Can you identify any situation in which a case would be moot if the plaintiff also sought nominal damages? Putting aside Bradford's particular one, is there any case that would be moot if nominal damages were attached?

Kristen Kellie Waggoner: No.

This Court has held that damages can't be mooted, but prospective relief can be mooted.

But that doesn't mean that everyone who asserts a nominal damages claim would prevail.

There are many reasons why nominal --

Amy Coney Barrett: But -- but why not?

Kristen Kellie Waggoner: -- damages can't be looking forward.

Amy Coney Barrett: Why not? Because you can always come up -- I mean, you were coming up with reasons why Bradford might have suffered some -- some damage.

It's then hard to conceive of any -- any suit that sought prospective relief, like a declaratory judgment, or injunctive relief that had a tag-along claim for nominal damages that could survive -- sorry, I mean that would be mooted.

Kristen Kellie Waggoner: Well, that's true if -- if there's a past injury, first of all.

And not everyone who seeks prospective relief even has a past injury. It also assumes that there's a cause of action and a defendant amenable to those things.

So, while damages can't be mooted since you may --

Amy Coney Barrett: Thank you, counsel. My time is up.

John G. Roberts, Jr.: A minute to wrap up, counsel.

Kristen Kellie Waggoner: Thank you, Your Honor. In terms of the courts being flooded, this Court -- in terms of the true concern about being -- courts being flooded with frivolous claims for relief, protracted litigation, or avoiding a drain on government resources, the long-standing rule is the rule that best resolves those concerns.

Injury-in-fact ensures that cases and controversies involving concrete harms -- and they're not made up, they're -- excuse me, and they're not made-up claims. There's no one that contests the injury in this case.

And the majority rules, consistent with Carey and Stachura, it hasn't led to a flood of claims but instead provides remedies for victims who were subject to discriminatory stop and frisk or prisoners who can't have kosher -- need kosher meals. And the Prison Litigation Reform Act doesn't even allow compensation.

In those situations, nominal damages is the only resolution.

And it fosters a quicker and fairer resolution because the government can't roll the dice and then say never mind at the end of the case when the -- when the odds switch.

John G. Roberts, Jr.: Thank you, counsel. Mr. Mooppan.

Hashim M. Mooppan: Mr. Chief Justice, and may it please the Court: Petitioners suffered an unquestionable Article III injury when Respondents censored their speech, and Petitioners seek the paradigmatic type of Article III redress for that past injury, a tangible award of money. That the amount of money is nominal is immaterial to whether an Article III case or controversy exists. Recognizing that the deprivation of a personal right is generally not harmless, common law courts have long awarded nominal damages as partial redress, and Congress incorporated that practice in Section 1983. Respondents' position would not just break from history and tradition but create confusion in the law.

Like nominal damages, many other forms of monetary relief are not tied to either evidence of quantifiable harm or likelihood of future violations, such as punitive, treble, and statutory damages. This Court should reaffirm that such monetary relief for past injuries is proper Article III redress. I welcome this Court's questions.

John G. Roberts, Jr.: Counsel, it -- it seems to me that one of the difficulties with your case is that it melds the inquiries into standing and the merits.

We have always been adamant about the necessity of addressing standing or, you know, the flip side of it, responding to mootness concerns before reaching the merits. But, if you have -- you have a case where there's no compensable damages, there's no concern about future injury, no -- no repetition, and all that's on -- on the books assume nominal damages as, you know, in name only, is a ruling on the merits, then the standing inquiry and the merits inquiry are precisely the same. Why is that not right?

Hashim M. Mooppan: I don't think that's right for the reason this Court gave in Spokeo. The question for standing is whether there is an injury-in-fact. Now, in this case, that's quite easy because being -- having your speech suppressed or being subject to a threat of suppression of speech is a paradigmatic injury.

John G. Roberts, Jr.: No, no, no. That -- that's exactly my point.

That is the -- simply the Court saying that you're right.

You know, you immediately discuss the -- the -- the merits.

Having your speech suppressed is an injury. What we always do is look for -- for standing first.

Okay.

You say something bad has happened to you.

How have you been injured? What gives you the right to come into federal court? I don't think you can answer your injury question without saying this is the resolution of the merits, and that violates the principle that standing and the absence of mootness are issues that have to be addressed before the merits.

Hashim M. Mooppan: No, I don't think so, Your Honor, because it might be that the suppression of speech is permissible under the First Amendment.

But the point is that the plaintiff wasn't able to speak.

They were not able to engage in certain speech.

That is an injury-in-fact. Now, whether the --

John G. Roberts, Jr.: That's a violation of rights.

The injury is always been understood to be something separate from prevailing on the merits.

Hashim M. Mooppan: So I don't think that's consistent with the common law, Your Honor, which Article III is derived from.

Take, for example, trespass.

Merely breaking the close of someone's property, setting one foot on --

John G. Roberts, Jr.: Well, that -- that --

Hashim M. Mooppan: -- someone else's --

John G. Roberts, Jr.: -- that has future effect since it establishes the boundary of the property. But anyway, Justice Thomas.

Clarence Thomas: Thank you, Mr. Chief Justice. Counsel, I'd like to follow up on the point that Justice Kavanaugh was addressing. You suggest that the defendants in these nominal damages cases should just basically surrender and accept the judgment.

But wouldn't that open them up to attorney's fees?

Hashim M. Mooppan: So, under this Court's decision in Farrar, they -- the plaintiff would be a prevailing party.

But then, under the second step of this Court's analysis in Farrar, whether the -- the amount of fees that would be reasonable in a -- in a nominal damages only case would potentially be quite minimal.

Clarence Thomas: And, again, just piggybacking a bit on what the Chief Justice was raising, the -- if you -- and -- and if there was a case for nominal damages that was similar to this, but -- one of the plaintiffs here, but there was no enforcement, as we had in the Flanigan case, would there be standing to pursue nominal damages then?

Hashim M. Mooppan: I think it would turn on whether there was a credible threat of enforcement.

This Court has recognized that there's an injury-in-fact when there's a credible threat of enforcement. So, to answer both your question and Justice Breyer's question from earlier, if you think of a case like Poe versus Ullman, where you had a law on the books that had never been enforced for decades, there, there might not be Article III standing to get into court in the first place. But, if you have a credible threat of injury that would let you bring a suit, prospective suit for injunctive relief, you can likewise get -- bring a retrospective suit for damages, whether those damages be compensatory or nominal.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Thank you. I'd like -- I'd like you to think of two opposite situations.

One, Blackacre.

I own Blackacre, and you come in and have picnic all the time.

Now you won't do it anymore, but I bring a lawsuit for trespass.

I can't measure the damages.

And nominal damages always have been given there. The opposite situation, what we have are 400 million laws, actions, policies, and let's take the subset where we don't know whether it violates the Constitution or not.

We don't know.

Border case. In those circumstances, if you bring the courts into every single case, they would spend an awful lot of time adjudicating those cases, though nobody is really hurt, when there are lots of people who are really hurt who need their time and effort.

Okay? So we have to draw a line.

And the Eleventh Circuit's line, not perfect, but a line, is allow it if you also could plead a claim for compensatory damages, which I think they did here.

I don't know why nobody said that.

But -- but, nonetheless, that's their line. Now, if you don't like that line, you tell me what's a better line.

Hashim M. Mooppan: So I think the better line is your example of Blackacre.

Just like in property cases, you could bring a trespass suit even if the trespass question was a very difficult one.

Stephen G. Breyer: I'm going to cut you off because, in trespass, you could bring a claim for compensatory damages.

Just very hard to prove.

Hashim M. Mooppan: But you never did.

As Justice --

Stephen G. Breyer: Well, but you could.

Hashim M. Mooppan: -- as Justice Story explained in his Webb decision, you don't need to bring a nominal -- a compensatory damages suit to bring a trespass suit.

And it doesn't matter how complicated the property law questions posed by the trespass suit are.

The -- the -- the alleged violation of property rights was enough to let you into court and bring a nominal damages suit. To answer the flip side of your concern, again, the defendant, if it doesn't want to pay the dollar -- again, doesn't want to adjudicate the suit, can just pay the dollar. So there's no reason why this --

Stephen G. Breyer: And he pays a dollar, and nobody has to adjudicate whether it is or is not unconstitutional?

Hashim M. Mooppan: No, because the courts resolve constitutional questions not in and of themselves but as a means to resolving a controversy between the parties. So, if the plaintiff says he's entitled to a dollar and the defendant says, great, I'm willing to pay a dollar, there's -- that's the end of the case.

Stephen G. Breyer: I see.

So --

John G. Roberts, Jr.: Justice Alito.

Stephen G. Breyer: -- the only cases that we really have left are we have two die-hards and they really won't give in and they're fighting over a dollar.

Hashim M. Mooppan: That's exactly right --

John G. Roberts, Jr.: Justice --

Hashim M. Mooppan: -- just like if you have two neighbors who insisted on fighting over a trespass suit over a dollar.

John G. Roberts, Jr.: Justice Alito.

Hashim M. Mooppan: That doesn't happen in -- in the real world very often.

John G. Roberts, Jr.: Justice Alito.

Hashim M. Mooppan: Sorry.

Samuel A. Alito, Jr.: Counsel, could you say something about Mr. Bradford's claim? The policy was never actually enforced against him. So in what sense did he suffer a past injury?

Hashim M. Mooppan: So, in the sense of SBA List and the Virginia Booksellers, he clearly faced a credible threat of enforcement given that the policy was actively enforced against others at the time and he knew it.

As a result, he -- he chilled his own speech. But that's not self-censorship in the way of Clapper because there was a credible threat of enforcement.

So that is a concrete harm that's fairly traceable to the government's policy. It would be a different situation if the government didn't have a policy or if the government didn't enforce their policy.

Then his failure to speak would be attributable to his own actions. But, in a case where the government had a policy that they were robustly, actively enforcing at the time, his self-censorship is attributable to their conduct, and that's why he had an injury that's fairly traceable. And I don't think anyone would dispute if he had brought a suit for injunctive relief; in fact, no one did dispute it.

Samuel A. Alito, Jr.: Is his situation different from that of any other student? Could every -- could every student come forward and say, I -- I might have liked to engage in speech that is prohibited by this policy, and, therefore, I should get nominal damages?

Hashim M. Mooppan: I -- I think they would have to say I would have.

I don't think it would be necessary to say I might have, but if they came in and said I intended to engage in speech, but I refrained from doing so because I was threatened with severe campus discipline if I did so under the policy, yes, I think every one of those people has suffered an injury-in-fact that's traceable to the government's policy.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Counsel, it -- it seems to defy our case law that says a generalized grievance that everyone is subject to, every student, does seem the quintessential lack of standing question, that why should every citizen who believes a law is unconstitutional come into court and challenge it? And that what -- that's what it appears Mr. Bradford is doing.

Does he have any burdens on this issue? Does he have to prove what plans he actually made, when he developed this plan, et cetera? I -- I'm a little lost as to how someone can just walk into court and say that chilled me from speaking, and that would be enough.

Hashim M. Mooppan: So I guess two points, Your Honor.

The first is it's not a generalized grievance precisely because he has to make the sort of allegations you just talked about.

So, if someone was on a college campus and never had any intention engaging in any of this speech, that person could --

Sonia Sotomayor: How do you prove -- how do you a prove a negative? Meaning I -- generally, you look at what a person does, not what they say they wanted to do.

Hashim M. Mooppan: Well, so no, and it would be --

Sonia Sotomayor: How do you read a mind -- a person's mind?

Hashim M. Mooppan: Well, so the plaintiff would have to allege it.

He would -- he would have to declare it and testify to it.

You could cross-examine him as to his sincerity.

But, yes, ultimately, the question is, was he intending to do something and was he chilled from doing it because the government had a policy that prohibited it? And, again, the plaintiffs -- the Respondents in this case haven't disputed that he had standing to sue if they hadn't restricted -- eliminated their policy.

No one is disputing that he had an injury-in-fact that would have let him bring a prospective suit.

That is based on the same exact injury-in-fact that supports his retrospective claim for damages.

Sonia Sotomayor: But would -- is that an injury-in-fact that's compensable, even with nominal damages?

Hashim M. Mooppan: Yes, Your Honor.

Sonia Sotomayor: Meaning if he never took a step to effectuate what he wanted to do, and unlike his colleague, who actually was in the midst of speaking and was stopped, so that could be -- I see easily how that's an injury.

But I'm not quite sure that it can be an injury-in-fact when you don't take actual concrete steps to do something and just merely say I had a desire.

Hashim M. Mooppan: Well, his concrete step is he refrained from taking action.

He intended to engage in speech and didn't do so because the government threatened him with sanctions.

I think --

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: General Mooppan, you have a lot of history on your side, but I think I want to give you a theory about why that history is not very relevant. I think that these cases that you have fall into three groups.

The one are they are declaratory judgment actions in a world before declaratory judgment actions.

In other words, they're ways to try to determine legal rights going forward before the declaratory judgment form existed. The second group of cases are cases in which there's injury that's hard to monetize, and -- and these cases are asking for something to recompense that injury.

But the reason why those cases aren't very relevant anymore is that, in our world, we monetize those claims all the time.

We now live in a world, unlike the historical world, in which we acknowledge claims for emotional distress, claims for dignitary harms of all kinds, which makes the nominal damages claim unnecessary. The third group of cases is a case in which what the plaintiff really wants is vindication.

It's a statement that I'm right, the defendant is wrong.

And as to those cases, modern Article III jurisprudence says that, you know, you don't -- that's not a case or controversy. So, given all that, what role is there anymore for nominal -- nominal damages claims?

Hashim M. Mooppan: Your Honor, I -- I don't think that that's an accurate characterization of the common law, and I'd like to make two points about that. So the first is I would point this Court, again, to Justice Story's opinion in Webb, where his primary reason that he gave for why nominal damages were appropriate is that he viewed it as essential in the common law that every injury imports damage in the nature of it. And if no other damage is established, the party injured is entitled to a verdict for nominal damages. That is essentially a recognition of a form of liquidated compensatory harm of at least a dollar because the violation of a right isn't harmless, and if it's not harmless, it's entitled to at least a dollar. He then went on to say, a fortiori, if there's a risk of future harm, that would support nominal damages.

But I think the critical point to recognize is the likelihood of a future trespass or a future assault or a future mistrain.

None of that future likelihood would become close to meeting the Article III requirements we have today of likelihood of future injury.

Elena Kagan: Thank you --

John G. Roberts, Jr.: Justice --

Elena Kagan: -- General Mooppan.

John G. Roberts, Jr.: -- Justice Gorsuch.

Neil Gorsuch: Counsel, you said you had two points in response to Justice Kagan. Before proceeding, I just want to make sure you got both of them out there.

Hashim M. Mooppan: Yeah.

So the last point I was going to make is about a bucket of cases that the Respondents cite in their brief that I think actually cuts the exact opposite way. There are a -- a series of cases they -- they cite at pages 34 to 35 of their brief where common law courts, appellate courts, said it was harmless error to not have awarded nominal damages precisely because there wasn't a likelihood of future harm. The Respondents emphasize harmless, but the real key is that error.

The appellate courts there recognized it was error not to award nominal damages even though there was no likelihood of future harm. So I think that very clearly demonstrates that the common law courts were not viewing nominal damages as some sort of proto-declaratory judgment.

They recognized it for exactly what Justice Story said it was.

It was a recognition that every injury imports damage in the nature of it.

Neil Gorsuch: Just to make sure I understand at least part of that response, Justice Kagan posited -- I believe it was her second bucket of cases in which today we're able to and -- and do monetize what maybe had been before hard-to-monetize claims of emotional distress and things like that. Is -- is -- is the essence of your response, yes, maybe we do and we have great lawyers and economists who can do that today, but one need not do that for Article III purposes because, historically, it was not done?

Hashim M. Mooppan: That's right.

Common law courts -- and Congress ratified that through Section 1983 -- were entitled to decide that you at least get a dollar. Now, if you have clever lawyers and you can do the sort of thing that Justice Kagan identified, then you can get more.

You can get quantified -- you can get compensatory damages for quantifiable, specific evidence of harm.

Neil Gorsuch: But perhaps one shouldn't be penalized for lacking a clever lawyer.

Hashim M. Mooppan: That's right.

Or another way of thinking about it is Congress is entitled to determine that the deprivation of a constitutional right isn't harmless, and if it's not harmless, then you're entitled to at least a dollar.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you. And good morning, counsel.

Picking up on Justice Thomas's question and the last part of Justice Breyer's question, I'm trying to, again, figure out what's really at stake here. This is not about the one dollar, I wouldn't think.

The concern about litigation being prolonged or an advisory opinion, you say that can be answered, as I understand it, because the defendant can always just surrender to the judgment and the district court would enter judgment without adjudicating the merits, is that correct?

Hashim M. Mooppan: That's correct.

Brett M. Kavanaugh: Okay.

So that leaves me with the strong suspicion that attorney's fees is what's driving all this on both sides because, under Buckhannon, correct me if I'm wrong, if you sue for injunctive relief, the defendant changes the policy, as happened here, you get no attorney's fees, correct?

Hashim M. Mooppan: Yes, that's correct.

Brett M. Kavanaugh: Okay.

But, if you have nominal damages, you can get attorney's fees potentially, correct?

Hashim M. Mooppan: Right, under Farrar.

Brett M. Kavanaugh: Right.

So what seems to be driving this is that the reason the plaintiffs want nominal damages, plaintiffs generally want nominal damages to be available, is attorney's fees, and the reason defendants do not want them to be available is they don't want to pay attorney's fees, correct?

Hashim M. Mooppan: At least partly.

I think at least some respondents -- or defendants might also want not -- might not want to pay the dollar because they don't want to admit any sort of wrongdoing --

Brett M. Kavanaugh: Right.

Hashim M. Mooppan: -- even in the passive sense of paying a dollar without saying that they were wrong on the merits.

Brett M. Kavanaugh: Got it.

Okay. And then Judge Jacobs and Judge Henry, though, say -- and I think this cuts in favor of your ultimate position here -- but they say the attorney's fees can be -- a concern of allowing nominal damages can be handled and already have been handled under Farrar by saying you don't get much in the way of attorney's fees when you get nominal damages. Is that how you see it?

Hashim M. Mooppan: I think that's right.

I think, under Farrar, it's a reasonableness inquiry, and I think there are two main things you would look at.

I think you would look at what the plaintiffs sought.

Did they seek 17 million dollars and only get one, or did they seek one dollar from the outset and only get it? And then the other thing I think you --

Brett M. Kavanaugh: What if they --

Hashim M. Mooppan: -- would look at --

Brett M. Kavanaugh: -- what if they sought injunctive relief and nominal damages and the party, the defendant, changed its policy, so no injunctive relief, but they still get the nominal damages? How do you think attorney's fees works there?

Hashim M. Mooppan: I think it would depend on when it happened.

I think that if the defendant changed their policy years into the litigation, I think there would be a much stronger case for the plaintiffs saying -- being able to say that they litigated the case, ultimately did get some relief that makes them really --

Brett M. Kavanaugh: That sounds like an end run around Buckhannon, what you just said, but maybe I'm wrong about that.

Hashim M. Mooppan: Look, I think it partly depends on -- it's a question about reasonableness.

Farrar tells us that the dollar isn't an end run around Buckhannon, you are a prevailing party, and then the question is who acted reasonably.

I think it --

John G. Roberts, Jr.: Justice Barrett.

Amy Coney Barrett: Mr. Mooppan, last term, in New York State Rifle and Pistol Association, we held the case, the Second Amendment challenge, moot because the City of New York changed its policy. Was that then really just kind of a technicality? If the pistol association had sought nominal damages, would that case have had to come out the other way under your theory?

Hashim M. Mooppan: Yes.

I think, if they had always had a live nominal damages claim in a case like that, once you were already at the appellate court, the court -- the award would have been a live claim and they wouldn't have been able to just say, oh, we'll pay the dollar. Under this Court's decision in Young, which we cite in our brief, an appellate court's ability to just accept a concession like that is different from a district court.

Amy Coney Barrett: Okay.

Well, then let me circle back to some of the questions that various of my colleagues were pressing Ms. Waggoner on.

You had Justice Breyer, and then I asked this question.

We're trying to get Ms. Waggoner to identify any case that would ever be moot under your theory so long as nominal damages were sought. What -- another way of getting at that point is, no, the majority of circuits do accept your theory and say that there -- that nominal damages can keep a case live or, put differently, that seeking nominal damages, a plaintiff would have standing to seek nominal damages alone. So, in that majority of circuits that follow the rule that you want us to adopt, do cases moot out?

Hashim M. Mooppan: They do.

But I think the primary reason they do is there are a set of cases where nominal damages just aren't available, the most obvious for us being the federal government isn't subject to nominal damages, and lots of other statutes besides 1983 don't authorize nominal damages. But, if nominal damages are otherwise legally available, then it would be difficult for a suit to moot out if nominal damages were sought, but, with the one caveat that, as a practical matter, lots of people aren't going to keep litigating a case just over nominal damages, especially given Farrar's rule about the reasonableness of attorney's fees. So, as a practical matter, a lot of these cases will moot out even if, as a legal matter, they don't.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Mr. Mooppan.

Hashim M. Mooppan: So I'd just -- I'd just like to make one last point, which I think is a pretty important one, which is there are lots of types of monetary relief that are neither dealing with future harm nor based on quantifiable evidence of past harm: punitive damages, statutory damages, treble damages.

All of those would seem to violate under -- Article III under Respondents' theory, but all of those are unquestionably permissible. I think the solution that -- for why all of those are permissible shows why nominal damages are permissible too.

It is that monetary relief has traditionally been recognized as a proper form of redress for past injury-in-fact, and that simple rule is sufficient to rule for the Petitioners here.

John G. Roberts, Jr.: Thank you, counsel. General Pinson.

Andrew A. Pinson: Thank you, Mr. Chief Justice, and may it please the Court: At bottom, the question whether nominal damages resists mootness in a case like this one reduces to the question whether nominal damages redress past injuries. When there's no longer any threat that a plaintiff's injury will recur in the future, a case is safe from mootness only if the court could still give the plaintiff something that redresses what's now a purely past injury. But nominal damages do not fit that bill.

Generally, past injuries are redressed through compensation.

But both modern and historical authorities agree that nominal damages aren't compensation. Unlike other kinds of damages, the law affirmatively strips nominal damages of that role.

They're an indeterminate and trivial sum precisely because they're given as a symbol that, although the plaintiff proved a legal violation, they're entitled to exactly zero compensation for it. That means nominal damages can't serve as independent redress for purely past injuries. And the body of common law bears that out.

It's full of cases awarding nominal damages when giving them to establish or protect the plaintiff's legal rights going forward or when they're a symbolic gesture given after a plaintiff failed to prove compensable injury for a legal violation. But Petitioners haven't cited a single common law case that decided the merits of a legal claim where a plaintiff had sought only nominal damages and awarding them couldn't affect the plaintiff's ongoing legal rights or interests. Without a working theory for how nominal damages can actually redress past injuries or historical evidence for that claim, the conclusion has to be that they aren't retrospective relief that saves the case from mootness when there's no longer a threat of continuing injury. I welcome this Court's questions.

John G. Roberts, Jr.: Counsel, is your position that nominal damages are never sufficient on their own to establish standing or prevent mootness? In other words, they're --

Andrew A. Pinson: That's not --

John G. Roberts, Jr.: -- present from -- sort of under our modern jurisprudence, that there should be no such thing as nominal damages?

Andrew A. Pinson: That's not our position, and that's because, at common law, nominal damages were available in the same role as -- as what you would normally see a declaratory judgment claim brought today when it concerns the legality of past conduct. So our -- our test would be whether the nominal damages could redress a continuing, present, adverse effect on a plaintiff's legal rights or interests.

So they can't --

John G. Roberts, Jr.: Well, then you're --

Andrew A. Pinson: -- redress anything.

John G. Roberts, Jr.: Yeah.

Well, then today you're saying that, or under today's legal regime, that if you ask for nominal damages, you're really just asking for a declaratory judgment.

And if there's some reason a declaratory judgment is not available, then the nominal damages are not sufficient.

In other words, it's just using the wrong label for the type of action you're bringing.

Andrew A. Pinson: It -- it -- I could envision a case where nominal damages might have a separate role because they aren't discretionary, like equitable remedies, but, generally, that's -- that's correct, Your Honor.

John G. Roberts, Jr.: Joseph Story's name has been bandied about a little bit.

What -- what is your answer to his position?

Andrew A. Pinson: Sure.

And it's this -- this Webb case that my colleagues on the other side have referred to, and there's -- there's two points there. One is that the -- the general notion that you hear of every injury importing a damage, what that meant at the common law was that the Petitioners or the plaintiffs had a damages claim and so they would bring that damages claim, and you see that in all of Petitioners' cases.

And if they weren't able to prove it, then nominal damages could be given to reflect that outcome. But I think the more important thing about Webb is, in that case, that -- that's a riparian rights case.

That is the paradigmatic kind of case where nominal damages could be sought on their own because they offered some sort of prospective relief.

In those cases, they allowed plaintiffs to fend off creation of prescriptive rights or show boundaries or establish riparian rights.

John G. Roberts, Jr.: What if Congress passed a law and they wanted private -- encouraged private enforcement, so they said that, if you -- you prevail, you get statutory damages of one dollar? Is that a suit that can be brought?

Andrew A. Pinson: So, Mr. Chief Justice, I think that's a difficult question.

Normally, statutory damages, we would say, served this role that -- that Petitioners want nominal damages to serve.

They're a compensation for sometimes harms that are hard to quantify. But, if it's only a dollar, I think it likely depends on the injury being redressed, because the whole reason that common law courts would allow giving him a nominal dollar is because it was a trivial sum, which meant that it could serve as that symbol. So, arguably, Congress, when they do that, if all they're doing is giving that same trivial sum and it's really a vehicle for advisory opinions, I think the Court would have to look carefully at that.

John G. Roberts, Jr.: Well, I mean, is your answer the same with the allegation that, you know, for the gas that it took to drive the three blocks to -- to the -- to the campus or something like that, would you say that's just too small?

Andrew A. Pinson: No.

That -- a different answer there because that's -- compensatory damages, whatever the amount, are recognized as relief of a past injury.

That was true at common law, even when the amount of damages were small, and it's true today in this Court's decisions like SCRAP. I think it's only in -- in the circumstances where the -- the damages being given are the specific nominal damages remedy or something that's -- that's sort of trying to do that by some other means that -- that you run into the problem of not having any sort of compensation for a past harm.

John G. Roberts, Jr.: Justice Thomas.

Clarence Thomas: Thank you, Mr. Chief Justice. General Pinson, are there cases in which the Court has awarded nominal damages because of failure of proof of actual damages?

Andrew A. Pinson: Cases -- cases of this Court, I think, at least the Court said in cases like Carey and Stachura that at the end of the case, that -- that nominal damages could be awarded, and Farrar did the same thing.

Clarence Thomas: So why would -- why would there be standing in a case like that?

Andrew A. Pinson: You have standing in a case like that because a compensatory damages claim allowed the court to decide the case.

And -- and I -- I understand the -- the potential resistance to that, right, that you need standing for a separate -- for each separate claim of relief. The answer is that, at the common law, these claims were not pled in the alternative. The -- the claim that allowed Petitioner -- that allowed the plaintiffs to seek relief was a damages claim.

If they stated a legal injury, they got -- it imported the damage and they got that claim.

That would allow the court to adjudicate the merits. And then the nominal damages awarded if they weren't able to prove substantial damages was just a symbolic gesture.

It reflected the outcome and allowed the court to give costs.

But -- but courts said over and over that it wasn't actually compensating anything.

Clarence Thomas: Well, that seems to be at war with the -- with the existence of standing, though, don't you think?

Andrew A. Pinson: It -- it is -- again, if you -- if you treat that as a separate claim for relief, that's an understandable response, and -- and all I can say is that at the common law, those courts didn't treat it like that.

And they didn't treat it as -- as giving any separate relief.

They treated it as an outcome or a symbol for that outcome.

So -- so it's -- it's bound up with that damages claim in a way that allowed the courts to give it.

Clarence Thomas: In -- in this case at the Eleventh Circuit, the -- the court of appeals seemed to dispose of this simply with -- with Flanigan, by citing Flanigan's.

And I don't quite understand why that case should cover this case, where there was actual enforcement here but no enforcement in Flanigan's.

Andrew A. Pinson: So Flanigan's -- you're correct that in Flanigan's there was no actual enforcement.

Our position is that enforcement or not does not matter because even if there was enforcement and what the plaintiffs are seeking is redress for a past injury, nominal damages aren't the answer to that. So you could view the decision below as a slight extension of Flanigan's if you -- if you view Flanigan's as turning on the lack of enforcement.

But, in our view, the -- our position doesn't change, and we would say that -- that neither case presented a justiciable controversy.

Clarence Thomas: Did the court of appeals say that, make the same point that you're making?

Andrew A. Pinson: Well, both in Flanigan's and the court of appeals applying Flanigan's below make the point that nominal damages do not redress past harm.

That -- that's -- that's the basis for Flanigan's and it's the basis for the decisions that Flanigan's relied on, like Judge McConnell's important concurrence in Utah Animal Rights Coalition.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Thank you. What about when they do redress past harm? Jones owns Blackacre.

Smith, his hostile neighbor, regularly picnics on Blackacre, and then he dies or some unfortunate thing.

He's never going to do it again.

Well, what's the damage? I mean, all he did was picnic.

Pretty hard to measure.

And so nominal damages. Or a college says: You can't pray here, young student.

And imagine that policy is unconstitutional.

And suppose he was stopped from praying.

What's the damage? Can you say there was no damage? There was.

But what is it? How do you measure it? I don't know. And the same with speech.

He wanted to speak there.

He was constitutional -- unconstitutionally forbidden to do it.

Well, he was about to give his speech.

What's the damage? Now don't nominal damages have a place right there where there is damage, but it's just impossible to measure?

Andrew A. Pinson: Justice Breyer, they do not.

Certainly, that's Petitioners' position. They want nominal damages to redress harms that are difficult or impossible to quantify. But that's just not what nominal damages did at the common law.

There were other solutions that the common law had for that problem.

One was presumed damages, which were compensatory damages given even if plaintiffs weren't able to prove a certain -- a certain amount.

Stephen G. Breyer: Right.

I accept what you say there.

It wasn't the theory of common law, hypothetically, but isn't it a fairly good line to draw to keep the -- to keep the cases out of a court, where all you have is a theoretical argument that this is unconstitutional and never hurt you from --

Andrew A. Pinson: Just --

Stephen G. Breyer: -- those cases where there is unconstitutionality and genuine harm but difficult to measure?

Andrew A. Pinson: Justice Breyer, I -- I don't think it's a -- a line that this Court is allowed to draw because it draws -- well, it -- Article III draws from the common law, and the common law said that nominal damages don't serve that role. But, in addition, there -- there are other solutions to that concern --

Stephen G. Breyer: What?

Andrew A. Pinson: -- first, of course --

Stephen G. Breyer: Go ahead, please.

Andrew A. Pinson: First, of course, that those kinds of harms often result in more established kinds of compensable injury, whether it's intangible injuries, like emotional distress, or tangible ones. In addition, in -- in some kinds of cases, Petitioners can seek compensation precisely for lost opportunities to exercise constitutional rights. The voting rights context is an important one, and that's one that the -- the Court noted in Stachura, where plaintiffs can actually seek compensatory damages for those lost opportunities, separate and apart from the abstract value of the right itself. And -- and then, of course, beyond that, petitioners in these kinds of cases -- often the object of the suit is not the -- the small or difficult-to-measure past harm.

What they want is a change in the law or policy, and, of course, prospective relief is available for that. And then -- and then, finally, it's always on the table for Congress to offer a kind of statutory damages of a non-trivial amount to -- if -- if it turns out that there's a class of cases where those kinds of harms aren't and need to be compensated.

Stephen G. Breyer: Thank you.

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: Let -- let me pick up exactly where you left off.

So let's say Congress amends 1983.

It says whenever a violation of the First Amendment is proven, a past violation, plaintiffs shall be awarded statutory damages of one dollar. You would say there is no -- there is no standing there because that's -- that sum is too low, is that right?

Andrew A. Pinson: Justice Alito, I -- again, I think that's a difficult question, and I -- I think it's difficult because you have two different common law analogs that you have to try to square. The first analog is that at the common law too, you had statutory damages and those plaintiffs could -- could seek statutory damages alone and they had standing to do that.

Those were compensation often for kinds of harms that either were very easy to assign a value to or very hard. But then you also had nominal damages. And the reason nominal damages worked in their symbolic role at common law is because they were trivial. So, when Congress assigns that trivial amount to "statutory damages," I think you have to look hard at it to know whether it's actually something giving compensation or not. In the case of --

Samuel A. Alito, Jr.: So your -- your answer -- to cut to the chase, your answer is that statutory -- that when there is injury-in-fact and there must be injury-in-fact, statutory damages cannot be awarded unless they can reasonably be regarded as a quantification, a monetization of the amount of the harm, is that it?

Andrew A. Pinson: Justice Alito, I don't think they have to precisely quantify the harm. And, in fact, the statutory --

Samuel A. Alito, Jr.: Well, what if it's 10 dollars? What if it's not one dollar? What if it's 10?

Andrew A. Pinson: I -- I think it's a hard line-drawing problem, and -- and I --

Samuel A. Alito, Jr.: Well, that's why I'm asking the question, because I need help with this hard line-drawing problem.

Andrew A. Pinson: Right.

And -- and, Justice Alito, again, what I'd say is I -- I think if -- if you can reasonably say that that's compensation, even if it's partial compensation or compensation for difficult-to-prove injuries, then -- then that provides Article III redress. And I -- and I -- I think that that should be the presumption.

I think it's only when you get down to that very small level, maybe a dollar or below because that's -- that's where we -- we assign nominal damages today, that you get into the -- the problem with Congress possibly trying an end around this Court's standing doctrine.

Samuel A. Alito, Jr.: All right.

Another -- another question.

Is it necessary for a plaintiff to have standing with respect to every form of relief that the plaintiff seeks in a complaint?

Andrew A. Pinson: It is.

That's -- that's the Court's rule in -- in Town of Chester and other cases.

Samuel A. Alito, Jr.: So, if we agree with you here, I don't quite see how nominal damages could ever be awarded.

Andrew A. Pinson: Justice Alito, I think -- I think there are two ways.

First, their -- their principal purpose at common law, of course, was nominal damages awarded to establish a right, so they would still serve that role here. But what I gather you're getting at is -- is the -- the sort of secondary role where you have a compensatory damages claim that fails before the end of the case. And the answer there is, one, that's what common law courts did.

We see that over and over, that they didn't treat nominal damages as a separate claim of relief but just reflecting the outcome. And then, second, I -- I think it gets to what we're really -- what we're really getting at by asking this question.

We know that common law courts did that.

The Plaintiffs say that it shows, therefore, that they compensated past harm.

But the common law courts say that they didn't do that.

Samuel A. Alito, Jr.: Well, you rely very heavily -- you're relying very heavily on -- on the common law. Do you want us just to apply the common law rule, and, if so, weren't nominal damages available at common law?

Andrew A. Pinson: Nominal damages were available at common law, but they -- they weren't independently justiciable redress for past harms. For -- for all of the cases that Petitioners cite and that the government cites and -- and that we cite, there are no common law cases out there where plaintiffs were bringing nominal damages claims alone without any prospect of -- of future redress. All of those cases, Petitioners -- the plaintiffs had brought actual damages claims and then they failed for lack of proof.

Samuel A. Alito, Jr.: All right.

Thank you.

Andrew A. Pinson: That -- that --

Samuel A. Alito, Jr.: My time -- I think my time is up.

Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Counsel, in addition to the questions that Justice Alito had, it seems that your argument doesn't make any sense of other of our precedents where we held -- and you don't dispute in your briefing or here -- that the award of punitive damages can qualify you to have standing. But we very clearly have stated that punitive damage -- damages are not to compensate the injured party but, rather, to punish the tortfeasor and deter him and others from similar extreme conduct. If a case has been mooted because an act is not capable of repetition, there's no need to impose punitive damages, no matter how reprehensible the conduct may be. So I don't know how you can concede that punitive damages give you standing under your theory of the case.

Andrew A. Pinson: Justice Sotomayor, I -- I think the difference between punitive damages and nominal damages and -- and, frankly, between other kinds of monetary relief and nominal damages is only nominal damages are -- are conceived of as a symbol for zero compensation. Punitive damages, although their purpose is to deter and to punish, they can -- they -- they don't have that sort of legal roadblock that prevents them from being any kind of relief for past harms. And, in fact, Professor Dobbs and -- and other remedy scholars explain that they do provide some incidental compensation, although the law authorizes them for other purposes. And I think one -- one example from this Court's cases, Steel Company, notes that the civil penalties that were awarded in that case, if they were awarded to the plaintiff, even though they were punitive, would provide a sort of compensation or redress to the plaintiff themselves, even though that's not their purpose.

Sonia Sotomayor: See, my --

Andrew A. Pinson: So I think those -- those are just distinct from nominal damages.

Sonia Sotomayor: -- my -- my problem, counsel, is that then you're talking about quantifying an amount of damage, the ex-ante.

You're basically saying one dollar's not enough, when we've said, even for compensatory damages, that no matter how small your injury, and even if a jury gives you one dollar, that that would be enough as compensatory damages, not nominal damages. You've proven an injury. And nominal damages are directed to be paid to the plaintiff.

He or she may not think they got too much.

I certainly presided over many cases in which the jury's award was infinitesimally small compared to the claimed injuries, but you can feel compensated.

I don't understand why one dollar is not viewed as a form of alternative compensation.

Andrew A. Pinson: Justice Sotomayor, the reason that the dollar of compensatory damages is compensation for a past injury is because we've accepted that, which is really a legal fiction, that it offers -- that it offers the plaintiff some substitutionary relief for whatever their loss was, whether it's tangible or intangible. The problem is that, again, nominal damages at common law weren't conceived of in that way.

A chorus of commentators and cases say that they aren't compensation, but they're symbolic only.

McCormick on Damages said they're in no sense compensation.

English cases, like Beaumont versus Greathead, say that they have no existence in point of quantity. And then -- and then a whole host of --

Sonia Sotomayor: But neither -- counsel, we go back to the -- to the starting point of my question.

Neither are punitive damages.

They're not viewed as compensation. But what they are is a measure of recovery. Whether we call it compensation, punitive damages, statutory damages, these are monies that are paid to the plaintiff.

Whether it's one cent or 100 million dollars, it's still money that the plaintiff is entitled to receive.

Andrew A. Pinson: But, Justice Sotomayor, if -- if nominal damages are not compensation, it's not clear to me what else that dollar could be doing to redress the plaintiff.

Again, the reason that dollars redress past harms is because they are compensation. But, when they're not -- and -- and the common law says that nominal damages are not -- then you need an alternative explanation for what they're doing to specifically redress the plaintiff's injury.

And -- and we don't see that from -- from the Petitioner or from anywhere else.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: General, you said several times that nominal damages are just symbolic.

And what -- what are they symbolic of?

Andrew A. Pinson: They are symbolic of the fact that a plaintiff has proved a legal violation but is entitled to zero compensation for it.

Elena Kagan: I mean, that makes it sound like it's a dismissal of the plaintiff's claim almost, you know, like the libel suit where, well, technically, you committed libel, but you really don't have any damages because you're, you know, such a terrible person to begin with.

But that's not mostly what we're dealing with here. I mean, I -- I would have thought that most of these suits that we're talking about are suits where the dollar is actually symbolic of -- of -- of your winning, of vindication, not of nothingness.

Andrew A. Pinson: Justice Kagan, it is -- it is symbolic of the fact that the plaintiff proved a legal violation.

One of the practical reasons common law courts gave nominal damages was -- was so that they could say -- they -- they could count that a victory in the sense that they could carry costs. The -- the problem is that it was also symbolic of the fact that the plaintiffs either didn't have a compensable injury or wasn't able to prove it in any amount.

Elena Kagan: Let me give you --

Andrew A. Pinson: And --

Elena Kagan: -- let me give you a case.

I don't know what -- what case -- who this cuts in favor of, you or the Petitioners, but I thought I'd ask it because it's the most famous nominal damages case I know of in recent time, which is Taylor Swift's sexual assault case.

Do you know that one?

Andrew A. Pinson: Vaguely, Your Honor.

Elena Kagan: Yeah, you know, it was a few years ago, and she brought a suit against a radio host for sexually assaulting her, and she said, I'm not really interested in your money, I just want a dollar, and that dollar is going to represent something both to me and to the world of women who have experienced what I've experienced. And that's what happened.

The jury gave her a dollar.

And -- and it was -- it was unquestionable physical harm, but she just asked for this one dollar to say that she had been harmed.

Why -- why -- why not?

Andrew A. Pinson: A couple things, Justice Kagan.

First of all, that sounds like compensatory damages.

She may have only asked for a dollar of it, but she alleged clear compensable injuries, and so the jury could award that dollar in response.

Elena Kagan: I thought you might say that, but then why isn't that the same as this? The Petitioner here said he was harmed. He wasn't able to speak when he should have been able to speak.

And, you know, whether it's hard to monetize or it's not hard to monetize, he's just asking for a dollar to redress that harm.

Andrew A. Pinson: If -- if the dollar, Justice Kagan, isn't actually compensating that harm -- and -- and, again, it's unique to nominal damages that these harms aren't --

Elena Kagan: But these are just words.

In the same way that Taylor Swift's harm compensated her, so too here.

I mean, they don't really compensate anybody, but it's all the place of wants for a -- for -- for an acknowledged harm.

Andrew A. Pinson: Two things.

One is there -- there is a difference in the law between small damages and no damages.

The common law cases say that -- that nominal damages are no damages, not -- not small --

Elena Kagan: Nobody thinks that being sexual assaulted is really only worth a dollar.

Nobody thinks that.

It's worth a lot more than that.

But that's all she wanted.

She wanted to prove a point.

Andrew A. Pinson: And -- and -- and she had the ability to seek compensatory damages for that.

The proving the point, however, is -- is not something that federal courts exist to do. However important that dollar is to Taylor Swift or -- or -- or anyone else in constitutional claims or otherwise --

Elena Kagan: Well, could she or couldn't she? Could she bring that suit or couldn't she bring that suit?

Andrew A. Pinson: For nominal damages alone, outside of some prospect of recurrence, which I -- I would hope would not be the case, then, no, that -- that claim is moot.

It -- the -- she needs to allege a compensable injury and ask for compensation for that.

That's just fundamentally different from what nominal damages were.

Elena Kagan: Thank you, General.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, counsel.

I'd like to kind of pick up there just so -- just so we start on an agreed slate. It isn't the amount that's the problem.

One dollar isn't the problem.

So, if the plaintiff here had introduced a -- a bus receipt for its fare of less than a dollar and demonstrated that was tied to his injury, that would count.

And if Ms. Swift had come in with some sort of receipt of some kind, that would support her one-dollar claim, right?

Andrew A. Pinson: Right.

Neil Gorsuch: Okay.

So it all turns on the label of compensation, and -- and courts are going to have to figure that out.

Is that fair?

Andrew A. Pinson: I think that's fair, although I --

Neil Gorsuch: Okay.

Andrew A. Pinson: -- I mean, I would say there are plenty of kinds of compensation.

The only thing that --

Neil Gorsuch: Sure.

Andrew A. Pinson: -- doesn't work is nominal damages.

Neil Gorsuch: Sure, I understand. I got that point.

So I think the result is a rule that disadvantages perhaps two classes of persons particularly. First may be those like Ms. Swift who have some scruple or reason not to seek more, who could.

And we have a lot of -- of amici briefs from religious groups that indicate, for example, that they have religious scruples against seeking damages for some injuries they've suffered.

So they'd lose out, people like Ms. Swift and groups like that. And then it seems to me the second group that -- that -- that loses out are individuals whose claims are not sufficiently great to attract the attention of clever lawyers and economists to come up with damages theories. Emotional harm and distress is a particular example.

Areas where it's difficult to quantify damages and expensive to do so require a large enough damage to justify the effort.

So we disadvantage persons like that. It seems to me that's -- those are the kind of classes of persons exactly for whom nominal damages were designed in the first place.

And can you -- can you respond to that concern?

Andrew A. Pinson: Justice Gorsuch, I -- I guess, first, I would say -- I'll start with the end.

I'm not sure that's what nominal damages were designed for in the first place.

Neil Gorsuch: Well, I -- I -- I -- I -- fair.

But perhaps they were designed, in part, to ensure that someone who had suffered a legal wrong does not lose out simply because of a failure of proof about damages.

And I think that's often going to happen in that second class of cases I talked about where the damages are not great enough to warrant the work. So what do you say about that?

Andrew A. Pinson: Again, Justice Gorsuch, and I -- I guess going back to my colloquy with Justice Breyer, I -- I think there are lots of ways that those plaintiffs could still seek compensatory damages, and -- and maybe it's a little bit of extra work, but I'm -- I'm not sure it's -- it's a great deal.

It -- it just requires us to think about the established kinds of damages that you can get as a result of violations of those particular legal rights. Adding an emotional distress claim, if a plaintiff, you know, has an objective -- a reasonable basis, in fact, for that claim, is not, I think, a -- so heavy a lift that you're going to cut out plaintiffs from court. The -- the other thing I'd say is that I'm not sure why nominal damages is a satisfactory solution if that's the concern. After all, it is a trivial sum.

And -- and if what the plaintiffs are after is not the dollar but having the court tell them that their rights have been violated, again, that -- that's not what federal courts --

Neil Gorsuch: All right.

I --

Andrew A. Pinson: -- take this to do.

Neil Gorsuch: I -- thank you.

One -- one last question I'd like to squeeze in quickly.

You'd agree that in -- in those cases where we have the bus receipt showing 25 cents, less than a dollar, the attorney's fees problem recurs; you're going to have attorney's fees in those cases, so that can't be a good reason not to allow the fees, right?

Andrew A. Pinson: I agree that attorney's fees would be available if compensatory damages are awarded.

Sure.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you. And good morning, Mr. Pinson.

Picking up on things that Justice Alito and Justice Sotomayor said, it seems that there are a number of things working against you here: potentially, the history, the common law cases; the precedent of this Court that seems to have recognized in certain situations nominal damages, cases like Carey that we'd have to deal with; the line-drawing problem that Justice Alito raised; in other words, how do we distinguish potential statutes Congress might enact that awarded a dollar or -- or that kind of statutory damages.

And Justice Sotomayor asked about various forms of damages too.

So we'd have line-drawing. And then one thing I wanted to ask you about, this seems to be working fine in all the other circuits that allow nominal damages.

At least I'm not aware that there's huge problems. Is that incorrect? Just I realize that's not a legal point, more a practical point, but can you respond to that?

Andrew A. Pinson: Justice Kavanaugh, I -- I would point you at least to the states' amicus brief at 14 through 18.

I -- I can't say that there are -- are sort of floodgates opened of nominal damages claims in those circuits, but you do have cases where governments, even those sort of acting in good faith to make policy changes, have still sort of faced the problems of litigating suits for long periods of time and getting hit with large damages awards despite sort of quick resolutions of any prospective relief claim.

Brett M. Kavanaugh: Well, let me -- let me ask you about that.

And you, obviously, have answers to everything I just mentioned on the law, but some of the practical problems you've raised, and one of them right there, the extended or wasteful litigation, can't a defendant avoid that by paying the one dollar? The district court or the trial court enters judgment.

That's not a judgment on the merits. It has no preclusive effect. What's the -- what's the problem with that approach?

Andrew A. Pinson: Justice Kavanaugh, it -- it's not so clear to me that that judgment wouldn't have not only preclusive effect but -- but other effects.

At -- at least one Second Circuit case, Radha, at 909 F.3rd 534, and -- and I guess a couple of others have noted that a default judgment -- Wright and Miller says this -- is actually treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded. So I -- I think a preclusive effect is a real concern.

But, even beyond that, we often have individual public servants who are -- who have been sued in these cases.

I think it's probably not fair to them for governments to force them to accept, particularly if there's a liability judgment on the line, to accept that kind of liability against them in their individual capacities just to avoid prolonged litigation.

And then -- and then there are -- there are other various harms to governments as well from just accepting judgments. It might be a different case if we could literally just deposit the dollar and the case becomes moot, but I'm not sure of a procedural mechanism for doing that.

Brett M. Kavanaugh: Okay.

And then, on the attorney's fees question that's been raised, those -- if those were fully available, then that would provide, obviously, an incentive for some plaintiffs to continue litigating even if there was no other injunctive or compensatory relief at stake. But my understanding of the case law, Farrar, and seems to be how it's applied in most lower courts, is that plaintiffs do not receive much in the way of attorney's fees when they only receive nominal damages, and, therefore, the incentive to litigate wastefully is not as present.

It's not zero, I would acknowledge, but it's not as present. Can you respond to that?

Andrew A. Pinson: Yes.

So I do think that the better reading of Farrar is that generally you shouldn't get any attorney's fees for a nominal damages award.

But -- but that isn't necessarily borne out in practice. We see from the -- again, the states' amicus brief at -- at 20 lists several six-figure attorney's fees awards from nominal damages cases, and I think those are sort of just examples of cases.

There are -- there are quite a few more out there.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett.

Amy Coney Barrett: Counsel, I understood in your briefing you to make two points about why nominal damages are insufficient under Article III, one being they're the prospective, not retrospective, point, these are really declaratory judgments, and then the other focusing on the amount and saying the very trivial amount shows that these really can't be compensatory. But it seems to me that, in your responses to Justice Alito's questions, Justice Kagan's questions, Justice Gorsuch's questions, you've kind of gone back and forth on the triviality of the money point. So, you know, you suggested to Justice Alito that at some point it's so little money that really should be taken into account.

But, of course, our precedents say that, you know, even -- even a small amount is enough. And so, in the Taylor Swift example or in Justice Gorsuch's bus fare example, I -- I heard you -- at least I took you to concede that even a very trivial amount would constitute a compensatory injury under Article III. So is that part of your argument still with respect to nominal damages? Are you -- are you still hanging your hat on the amount, the one dollar being too little, and just exclusively focusing on the -- focusing on the prospective nature?

Andrew A. Pinson: The -- the -- the trivial nature of the award, Justice Barrett, matters only because that -- that was the way that the common law set nominal damages as a symbol. And so my response to Justice Alito reflected that, that what Congress is really doing is -- is -- is setting a trivial amount so that it serves as a symbol but doesn't offer any compensation that would be different. But our -- our primary argument is -- is simply that nominal damages in their nature do not serve as any compensation, regardless of whether the court decides in a given case --

Amy Coney Barrett: So what does the money have to --

Andrew A. Pinson: -- to give the dollar or not.

Amy Coney Barrett: -- so what does the money have to do with it? Are we trying to figure out -- you know, Justice Kagan's question suggested that, really, what Taylor Swift wanted was, you know, vindication of -- of the -- the moral right, the -- the legal right, that sexual assault is reprehensible and wrong. Are we looking at the motivation for the suit, so could nominal damages actually be compensatory for one person but not for another?

Andrew A. Pinson: No, no.

I -- I -- I don't think that's right, Justice Barrett.

The -- the nominal damages dollar isn't -- isn't compensation in any sense. The -- the difference, I guess, is -- is that, again, in those cases where vindication is sought, that's just not enough, right? So it doesn't matter what their motivation is. Vindication under Steel Company and -- and other cases is -- is not Article III redress because it doesn't redress any injury.

Amy Coney Barrett: So what's the --

Andrew A. Pinson: And that -- so --

Amy Coney Barrett: Oh, go ahead.

I'm sorry.

Andrew A. Pinson: I was just going to say and that -- and so those are the two aspects -- those are really the two big things that nominal damages do.

There's the dollar and there's the vindication.

The dollar, common law cases say, doesn't compensate, and vindication isn't enough by itself.

Amy Coney Barrett: So what is the effect of your argument on the very, very many consumer protection statutes we have, like the Telephone Consumer Protection Act or the Fair Debt Collection Practices Act? You know, I -- I think, in those cases, statutory damages, we might think of them, you know, let's say it's 100 dollars, but you also get attorney's fees, as about vindicating, you know, a right and having a deterrent effect on, you know, the -- the industry. If Congress reduced that amount of statutory damages down to a dollar, I mean, I don't see why it's any different.

So would this call into question whether those causes of action really are unconstitutional under Article III in many cases? I mean, you know, under the Telephone Consumer Protection Act, you get a couple annoying texts.

You know, that's -- that's pretty slight. As a statutory damage -- you know, if you seek statutory damages, are you seeking anything other than to -- to vindicate? Is that compensatory?

Andrew A. Pinson: Justice Barrett, I -- I think it is.

And -- and the last example you gave, I think, is a -- a helpful one.

But, if the injury at issue is a slight injury, then a slight amount of damages would still be viewed as -- or -- or we should presume that it's still compensatory damages, when -- when it's given as statutory damages.

So I -- I don't think there's any problem with the --

Amy Coney Barrett: But the Petitioners here haven't suffered such a slight injury?

Andrew A. Pinson: Well, I -- I -- I wouldn't say that it's a -- a slight injury.

I think the problem for Petitioners is that -- that the injury they've alleged is not one susceptible to proof.

And -- and, again, I -- I don't --

Amy Coney Barrett: So you can seek the damages for receiving a couple annoying texts but not for having your First Amendment rights violated?

Andrew A. Pinson: You can't seek nominal damages for the -- the bare violation of First Amendment rights.

You can seek compensatory damages.

Amy Coney Barrett: Thank you, counsel.

John G. Roberts, Jr.: A minute to wrap up, counsel.

Andrew A. Pinson: I'll end with -- with two quick points.

First, I want to stress that the way that this case was resolved is a good thing. Litigation prompted college officials to review their policies and just 10 weeks later to revise them in a way that maximized and respected First Amendment rights on campus not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia.

That kind of early out-of-court resolution should be encouraged. And keeping nominal damages in their limited historical role does that, while still allowing existing mootness doctrine to guard against bad faith or strategic mooting. And then, second, whatever the policy implications, this case comes down to what kinds of cases Article III allows federal courts to resolve. Article III takes its court -- cues from common law practice, and the common law made clear over and over that it's just wrong to think of nominal damages as a small amount of compensation. That means nominal damages can't save the case from mootness when changed circumstances relieve any threat of future injuries. This Court should affirm the judgment below.

Thank you.

John G. Roberts, Jr.: Thank you, counsel. Ms. Waggoner.

Kristen Kellie Waggoner: Thank you, Mr. Chief Justice.

Four points in response. First to return to first principles. Partial redress is still redress.

This Court has held that rule over and over again.

When money changes hands, that is a tangible benefit for Article III purposes. Several Justices have raised questions as to what the purpose of nominal damages are. Symbolic has come to mind.

Yes, they're symbolic in the sense that there -- there is an intrinsic value to the lost constitutional right that far exceeds the one, ten, or 100 dollars that is afforded in response for that. Second, vindication.

And vindication does occur through a nominal damages award just as with any other award. Third, compensation.

Yes, it provides compensation in an amount that recognizes the damages done.

And that too serves a valid purpose under Article III. My second point is that, as Justice Alito mentioned with my friend, statutory damages -- statutory damages should satisfy Article III.

And my friend on the other side suggests that they do. The reason that they do is for the reasons I just mentioned.

And there's no principled basis to deny nominal damages claims here. The common law has a number of cases where there is no compensatory claims asserted and there's no prospective relief at issue, yet the Court still awarded nominal damages. Doherty, Moon, Thompson, even Ashby recognizes that a cut on the ear is sufficient for nominal damages.

That's on pages 8 through 10, all of those cases, of our reply brief. There are so many carve-outs under my friend's rule that it proves the rule, and the practical effect boxes out especially civil rights victims. The rule works.

It's a long-standing rule that's been in place for hundreds of years. And it hasn't resulted in protracted litigation. And there is no incentive for plaintiffs or their attorneys to file standalone damages with Farrar in place in terms of the fees. But a word about the fees.

Section 1988 and 1983 and this Court have held that it's critical to not only the plaintiffs that are losing their civil rights and injured in these actions, but it's critical to our nation and it's a noble purpose to vindicate those constitutional rights.

A change of the rule here leaves victims that have serious constitutional injuries unredressed out in the cold. It also forces victims to reveal intrusive information, as in Flanigan's, or about their mental health records, or churches who have scruples about asserting compensatory damages to -- to prove those damages and, instead of limiting the litigation, it actually expands it, complicates it, and actually causes more liability for the government. In closing, in 2013, Georgia Gwinnett officials knew that this rule was unconstitutional.

They received a letter telling Chike that he was silent not only violated his rights, but it results in the government walking away from past harms that they caused. This is a solution that is in search of a problem, but a reversal actually creates the problem. Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.