Nike, Inc. v. Kasky, 539 U.S. 654, 21 (2003)

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Breyer, J., dissenting

ment did not protect the speech at issue, this Court held that its determination of that constitutional question was "plainly final." Cox, 420 U. S., at 485. California's Supreme Court has made a similar holding, and its determination of the federal issue is similarly "final."


The second condition specifies that, in further proceedings, the "party seeking review here"—i. e., Nike—"might prevail on the merits on nonfederal grounds." Id., at 482. If Nike shows at trial that its statements are neither false nor misleading, nor otherwise "unfair" under California law, Cal. Bus. & Prof. Code Ann. 17200, 17500 (West 1997), it will show that those statements did not constitute unfair competition or false advertising under California law—a non-federal ground. And it will "prevail on the merits on non-federal grounds," Cox, 420 U. S., at 482. The second condition is satisfied.


The third condition requires that "reversal of the state court on the federal issue . . . be preclusive of any further litigation on the relevant cause of action." Id., at 482-483. Taken literally, this condition is satisfied. An outright reversal of the California Supreme Court would reinstate the judgment of the California intermediate court, which affirmed dismissal of the complaint without leave to amend. Supra, at 665-666. It would forbid Kasky to proceed insofar as Kasky's state-law claims focus on the nine documents previously discussed. And Kasky has conceded that his claims rest on statements made in those documents. Brief for Respondent 5.

I concede that this Court might not reverse the California Supreme Court outright. It might take some middle ground, neither affirming nor fully reversing, that permits this litigation to continue. See ante, at 659-660 (Stevens, J., concurring). But why is that possibility relevant? The

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