Nike, Inc. v. Kasky, 539 U.S. 654, 17 (2003)

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Breyer, J., dissenting

I concede that the state-court determination in ASARCO was more "final" in the sense that it unambiguously ordered a declaratory judgment, see 490 U. S., at 611-612 (finding that two exceptions to normal finality requirements applied), while the state-court determination here, where such declaratory relief was not sought, takes the form of a more intrinsically interlocutory holding, see ante, at 662, and n. 4 (Stevens, J., concurring). But with respect to "standing," what possible difference could that circumstance make? The state court in ASARCO finally resolved federal questions related to state leasehold procedures; the state court here finally resolved the basic free speech issue—deciding that Nike's statements constituted "commercial speech" which, when "false or misleading," the government "may entirely prohibit," 27 Cal. 4th, at 946, 45 P. 3d, at 247. After answering the basic threshold question, the state court in ASARCO left other, more specific questions for resolution in further potential or pending proceedings, 490 U. S., at 611-612. The state court here did the same.

In ASARCO, the relevant further proceedings might have taken place in a new lawsuit; here they would have taken place in the same lawsuit. But that difference has little bearing on the likelihood of injury. Indeed, given the nature of the speech-chilling injury here and the fact that it is likely to occur immediately, I should think that constitutional standing in this case would flow from standing in ASARCO a fortiori.


No federal statute prevents us from hearing this case. The relevant statute limits our jurisdiction to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U. S. C. 1257(a) (emphasis added). But the California Supreme Court determination before us, while technically an interim decision, is a "final judgment or decree" for purposes of this statute.

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