Why did SCOTUS decline to consider the federal government's theory of standing in California v. Texas?

Justice Breyer's citations do not add up.

In California v. Texas, the federal respondents advanced a theory of standing-through-inseverability for the individual plaintiffs. The Cato amicus brief advanced a very similar theory. The Supreme Court ultimately declined to consider this theory. Why? Apparently, after three years of litigation, the issue was forfeited!

Last, the federal respondents raised for the first time a novel alternative theory of standing on behalf of the individual plaintiffs in their merits brief. (The dissent, alone, puts forward a similar novel theory on behalf of the state plaintiffs.) That theory was not directly argued by the plaintiffs in the courts below, see 945 F. 3d, at 385–386, and n. 29, and was nowhere presented at the certiorari stage. We accordingly decline to consider it. Cf. Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 109–110 (2001) (per curiam); see also Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).

Justice Alito did not address standing-through-inseverability for the individual plaintiffs. He dismissed it in a single sentence as "novel."

While the individual plaintiffs' claim to standing raises a novel question, the States have standing for reasons that are straightforward and meritorious.

Rather, Justice Alito found that the state plaintiffs have standing-through-inseverability. Justice Thomas agreed with the majority that the states waived this theory of standing. But Justice Thomas did not address whether the individual plaintiff standing-through-inseverability theory was waived. Ultimately, I'm not sure it matters. Justice Thomas seemed to conclude that inseverability can only be used at the remedial stage, and not to identify standing. Justice Thomas asked several questions during oral arguments about this issue, so he signaled how he is leaning.

Alas, the Court was unwilling to address what I think was the strongest argument for standing in the case. And the dissent glossed over it. Only Justice Thomas hinted that the entire theory may not work in a very terse discussion.

Why did the majority decline to consider the federal government's theory of standing in California v. Texas? Justice Alito offered a surmise in dissent:

The Court has no real response to the arguments set out above, so it falls back on the claim that the States forfeited those arguments because they (1) did not "directly" argue them in the courts below, (2) did not present them at the certiorari stage, and (3) did not raise them in this Court.See ante, at 10. JUSTICE THOMAS makes a forfeiture argument expressly. See ante, at 4–6, and nn. 1–2 (concurring opinion). There is nothing to any of these arguments.

Was this issue in fact waived? Let's revisit Justice Breyer's closing paragraph.

Last, the federal respondents raised for the first time a novel alternative theory of standing on behalf of the individual plaintiffs in their merits brief. (The dissent, alone, puts forward a similar novel theory on behalf of the state plaintiffs.) That theory was not directly argued by the plaintiffs in the courts below, see 945 F. 3d, at 385–386, and n. 29, and was nowhere presented at the certiorari stage. We accordingly decline to consider it. Cf. Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 109–110 (2001) (per curiam); see also Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).

Pages 385-86 and n. 29 of the 5th Circuit's decision only concerns state-standing. And not individual standing. I think "That theory" is supposed to refer back to the "federal respondents" theory on individual plaintiff standing. That citation to the 5th Circuit's opinion says nothing at all about the individual plaintiffs. The panel discussed individual plaintiff standing on pp. 378-384. So far, Justice Breyer's citations do not add up.

Next, the court cites pages 109-110 of Adarand Constructors, Inc. v. Mineta (2001). No, Not the far-more famous Adarand Constructors, Inc. v. Pena (1995). The 2001 case involves President George W. Bush's Secretary of Transportation. This construction company was litigious! The Court DIG'd the followup-case. Here, the Petitioner made no showing that it had standing "until three weeks before oral argument." And the Court sua sponte inquired whether "standing has been erroneously assumed below." Those facts are miles away from the posture in California v. Texas. The best the Court can say is that a "theory was not directly argued" below–whatever directly means. Was it argued? Indirectly? Is that sufficient to preserve an issue? In any event, Adarand II does not support Justice Breyer's conclusion. A competent law review editor would not have allowed that Cf.

The second cited case, Cutter v. Wilkinson, is more prominent. This case held that RLUIPA was consistent with the Establishment Clause. But the citation is not really helpful. Footnote 7 had nothing at all to do with standing. It simply repeats the proposition that "we are a court of review, not of first view." Nothing controversial there. This see also is also not appropriate. Was there no case to support the Court's position? Often the Court will appoint an amicus to argue jurisdictional positions. But here, it ignores an argument raised by the Solicitor General.

At no point did California or the House suggest the issue was waived. Indeed, Don Verrilli suggested that it may have some merit in a colloquy with Justice Alito. Yet, the Court simply did not want to address the federal respondent's brief.