Prof. Richard Re (Virginia) on "Does the Discourse on 303 Creative Portend a Standing Realignment?"

I saw this new article by Prof. Richard Re, a leading scholar of federal courts law and my former UCLA colleague, and asked him if he would guest-blog about it; I'm delighted to say that he kindly agreed. Here's the abstract:

Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries."

As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing.

Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal justices become jurisdictionally hawkish. In the past, justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.

Comments

[tkamenick]

I don't know about realignment, but I have found it interesting to hear a lot of non-lawyers talking (sort of) about standing. Used to be an utterly wonkish area, but the social media commentary is often about how this case was "fake" rather than its merits.

[Brett Bellmore]

"But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing."

Expansive standing is a game only the left are allowed to play, like living constitutionalism and conveniently redefining words to guarantee you automatically win arguments before they start.

[SimonP]

Cute, coming from the guy who has a conspiracy theory to explain every inconvenient fact.

[Zarniwoop]

Expansive standing is a game only the left are allowed to play

Even as an attempted dig at “the left”, this is nonsensical bool and sheet.

See, e.g.,Alliance for Hippocratic Medicine v FDA.

[David Welker]

Hopefully the theory that justices become "hawkish" or "dovish" on standing based on whether they are in the ideological minority or majority doesn't turn out to be true.

[SimonP]

I don't think that it will come as a surprise to see that justices take a more forgiving view of standing when required to reach the merits of cases, where they feel they have the majority to reach a desired outcome.

What I would find puzzling is a thesis that there's a "flip" happening just now, given that the Court has been majority-conservative for the better part of forty years. A liberal/conservative, majority/minority narrative doesn't seem to fit the Rehnquist or early Roberts years. More plausible might be one that focuses on the swing justices during that period, who might lean one way or another on standing depending on the specific issues before the Court.

Perhaps what we're seeing is not a "flip," so much as a consolidation of a super-majority on most "conservative" constitutional questions, leading to a more consistently permissive attitude to standing when it comes to reaching the merits of cases where the conservatives have a secure majority to reach their desired outcome. The only "swing" left, perhaps, being on the procedural questions, where the middle three justices are less motivated by movement conservatism than the corrupt nutjob wing, which explains the harder pivot among the liberals towards narrower application of standing jurisprudence.

[Magister]

It would seem that a super-majority was needed for such a switch, since the conservative leaning courts previously featured unreliable votes. The Dobbs leak was thought by some to be aimed at blocking Roberts and Kavanaugh (or whoever) from preserving any portion of Roe. Liberals pursued expansive standing even with conservative leaning courts, because even a somewhat conservative Supreme Court would bow to public pressure and to earlier liberal precedents. With norms about precedent now thoroughly broken, of course any crazy standing argument is a potential winner.

[momo]

> Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which ..

in which the law is applied differently based upon what political leaning you have.

No compliance required for the Left.

Strict and unmerciful compliance required for the Right.

It is all part of the Left's attack on the Rule of Law.

[Michael Ejercito]

A lot of people (including many commenters on this blog) were predicting that at least five of the conservative justices would punt this case on standing.

[not guilty]

"But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing."

It once was that plaintiffs whose standing was marginal brought lawsuits to influence public policy. Since the culture war regarding sex, reproduction and religion, that tactic has been more frequently employed by conservative plaintiffs. Alliance for Hippocratic Medicine v. FDA is perhaps the penultimate example of stretching standing beyond its traditional limits. Let's hope that SCOTUS rules that the troglodytes have gone too far there.

[ReaderY]

Penultimate?, It’s certainly not likely to be the last. And I suspect next to last is highly unlikely either.

[SimonP]

So many novel harms are being discovered in Texas. Man doesn't want his teenaged daughter to have access to birth control outside his control. Employer doesn't want to protect gay employees from the transmission of HIV. Doctors are worried about having to treat patients with adverse abortion effects. And is there any limit to state standing any more, when they can make a claim that federal policy would negatively impact their budgets?

[ReaderY]

As a long-time commenter, I started out as a judicially conservative voice. But as the court has changed, I’ve found myself increasingly often to the left of its right wing.

I think the current Court has, in several major cases, gone out of its way to decide matters it didn’t have to and therefore, by traditional conservative standards, shouldn’t. I agreed with Chief Justice Roberts that it should have awaited a case more directly challenging Roe v. Wade to overrule rather than narrow it. It should have awaited the regular or rocket docket rather than the shadow docket to brake new ground on matters of religion and public health. And more.

I understand that, since 303 Creative was a First Amendment case, standing could be justified under the overbreadth doctrine, which the Court has not overruled. That said, I think the overbreadth doctrine is overly broad. I think that some of the doctrines the Warren and Burger courts came up with to get around ordinary Article III standing, like overbreath and organizational standing, too closely resemble Justice Douglas’ quip that trees have standing.

[ReaderY]

And to be fair to the Court majority, my biggest objections to use of the overbreadth doctrine have come in cases where a federal court proceeds to interpret a state law against the express representations and arguments of the state’s own representatives, even when they explicitly disclaim any intention to prosecute the plaintiffs. When this happens, the question of whether ANYONE would be prosecuted by the defendants, let alone the plaintiffs, would only be non-hypothetical if they are lying. The idea underlying “broad overbreadth” is that if a clever lawyer can come up with a way to give the law a twisted interpretation, then that proves that someone, somewhere might possibly be “chilled,” and that’s enough to give the plaintiffs standing.

Here at least the state stipulated to the plaintiffs’ interpretation.

[David Nieporent]

And to be fair to the Court majority, my biggest objections to use of the overbreadth doctrine have come in cases where a federal court proceeds to interpret a state law against the express representations and arguments of the state’s own representatives, even when they explicitly disclaim any intention to prosecute the plaintiffs.

The express representations and arguments of the state's own representatives are not binding. When a state Supreme Court authoritatively interprets a statute as meaning something narrow, that's one thing. Then the person can't be prosecuted. But when a state AG says, "We would never prosecute this person under this law," nothing stops the AG who takes office tomorrow from saying, "We view it differently."

[ReaderY]

Then sue that person. The whole point of Ex Parte Young is one is that plaintiffs are suing the individual, not the state office, because in acting unconstitutionally the individual is acting outside the scope of the state

As you acknowledge, the named defendant is not causing the plaintiffs any injury. Your concern is solely that maybe, at some speculative unknown point in the future, some other person possibly might. Merely to say it is to make it self-evident just how far from genuine standing doctrine one is going.

[MatthewSlyfield]

"my biggest objections to use of the overbreadth doctrine have come in cases where a federal court proceeds to interpret a state law against the express representations and arguments of the state’s own representatives, even when they explicitly disclaim any intention to prosecute the plaintiffs."

Wouldn't a strict enforcement of what you suggest basically kill all pre-enforcement challenges, particularly to abortion restrictions?

[ReaderY]

I don’t see why that would be. Dr. Dobbs had every intention of enforcing Missisipi’s 12-week limit against Jackson Women’s Health Center, just as Sheriff Wade had every intention of enforcing Texas’ abortion law in Roe. Neither case presented any standing problem under traditional conceptions of standing. There was no “overbreadth” involved.

Roe’s relaxation of mootness to enable cases to proceed through court proceedings and appeals lasting more than 9 months is an analytically different question from whether standing exists in the first place.

[Larvell Blanks]

the criticisms came from the legal left, which has long been associated with expansive principles of standing

A good rule of thumb is to assume that all criticisms are made in bad faith, and are not meant to be neutrally applied.

[Carlos Inconvenience]

“ As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing.”

The only principle that matters to the left is winning.

[ThomasW]

This is most easily explained from a political standpoint. Those on the left favor more restrictive standing if they also oppose the position of those trying to get standing. Bring a hypothetical before the court asking for something liberals want and they'd be lenient on standing.

On the conservative side, being in favor of the result they granted standing. A plaintiff with a left wing clause would result in more restrictive standing.