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This essay was in The Hill on May 8, 2025.

From free speech rights and desegregation to gun rights and religious freedoms, civil rights litigation has long been a cornerstone of personal liberty in America. But in February, the Supreme Court issued an opinion that will make it harder for us as Americans to vindicate our constitutional rights when the government violates them.

In , a group of Virginia drivers challenged a state law that punished people for failing to pay court fees by automatically suspending their driver’s licenses. The plaintiffs secured a preliminary injunction — a court order issued early in a case to prevent potential harm while it is litigated in full — allowing them to keep their licenses. Virginia did not appeal that ruling, and before the case went to trial, the legislature changed the law and reinstated any licenses that had been suspended under it.

In cases alleging violations of constitutional rights, a  preempts the general rule that litigants pay their own fees and costs by allowing “prevailing” parties to recover attorney’s fees from the government actor who violated their rights. But in this case, the federal district court held the drivers had not in fact “prevailed” given that the case did not progress to a final conclusion, making them ineligible to recover attorney’s fees. This flew in the face of what courts and litigators had understood the law to be for decades.

The case eventually made its way to the Supreme Court to determine what “prevailing” meant in federal law and whether the drivers were entitled to reimbursement. The court, to the disappointment of advocates for civil rights and liberties, held that plaintiffs who do not obtain a final judgment on the merits do not qualify as “prevailing” even if, as with the Virginia drivers, they prevail in getting the government to change the law. 

Unlike corporate litigation, civil rights cases rarely involve large financial recoveries. In any event, plaintiffs often seek changes to laws or policies rather than monetary gain. Yet these are vital cases, not just for the individuals involved but for the communities they represent, even if they rarely provide enough financial incentive to make private representation feasible — unless attorneys receive compensation after winning the case.

Congress intended to encourage civil rights litigation by tying fee awards to success, whether through final judgments or preliminary relief. The House Judiciary Committee  on the legislation enacting the attorney’s fees provision noted, “a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude … that no formal relief, such as an injunction, is needed.” Despite this clear evidence of congressional intent, the court held otherwise.

Importantly, as the court pointed out, Congress has the power to clarify in the statute that attorney’s fees can be awarded before a final judgement on the merits. Congress must do so. 

The breadth of amicus briefs submitted in this case — from the ACLU to the Alliance Defending Freedom to the Firearms Policy Coalition — demonstrates that across the ideological spectrum, organizations recognize the critical role awarding attorney’s fees plays in civil rights litigation. 

As FIREnoted in its amicus brief to the Supreme Court, “Withholding attorney’s fees from victims of these First Amendment violations would be devastating — not just for them individually, but for access to justice more broadly.”

Congress must enact a simple, clarifying change that will have broad support and ensure all Americans can vindicate their constitutional rights. Justice isn’t free, but we can ensure it remains accessible to all.