The recent oral argument in the Supreme Court case Trump v. CASA, Inc. suggests the administration may be pursuing a clever approach to draining judicial precedents of any meaning. Call it “winning by losing.”

If left unchecked, winning by losing may prove to be an effective way of undercutting judicial decisions and thus the law embodied in those decisions. The approach also establishes a connection between seemingly unrelated actions—the administration’s executive order rejecting the Court’s birthright citizenship precedents, its orders against (and agreements with) law firms, and its opposition to broad injunctive relief.

Winning by losing starts with a policy transparently contrary to precedent, such as the birthright citizenship and law firm executive orders. District court losses are inevitable, but the brazen disregard of precedent signals that the administration does not care if it loses. It can deny appellate courts and the Supreme Court the chance to do anything about its defiance of precedent just by not appealing.

That works so long as the administration can limit the scope of its losses to the named parties, which was the position it defended last week. Intimidating law firms limits the number of lawyers willing to bring individual cases.

© The Hill