Robin Vander Wall
It’s highly unlikely this case will go any further. You’re right about the effect of bad cases. They pollute the waters by creating (or perpetuating) bad law. They weave a web of case law that cross pollinates from one district to another. That’s why it’s so important to calculate the likelihood of a positive outcome before filing an action. It’s also why a bad outcome at the District Court level should probably be left alone (not appealed).
An important note about the attorney, Andrew Barr. He did not seek this case. This case was assigned to him after the Circuit Court determined that there was enough merit to the plaintiff’s lawsuit to provide him with counsel on appeal. The Circuit probably already knew how it was going to dispose of the case but felt that it would be more appropriate for the plaintiff-appellant to have the assistance of counsel moving forward. Mr. Barr did the best he could with what he was given to work with. And he was smart, I believe, to seek amicus support from the ACLU and NARSOL/OK Voices. This was a Hail Mary strategy that was intended to raise the credibility of the questions presented. But, unless I’m blind, I saw no references made to either the ACLU or the NARSOL/OK Voices briefs in the final opinion. And that likely has a lot to do with the Court’s refusal to allow for an added claim (First Amendment) on review.