The Volokh Conspiracy
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What Explains the Discourse on 303 Creative?
Procedure, soundbites, popular views, and more combined to create legally unfounded memes.
This series of posts by Prof. Richard Re (Virginia) is based on his draft article, "Does the Discourse on 303 Creative Portend a Standing Realignment," which is forthcoming in the Notre Dame Law Review Reflection.
In my first few posts, I've argued that the legal and factual criticisms leveled against 303 Creative v. Elenis are basically misplaced, or at least greatly overblown. That conclusion raises an important question: why did procedural criticism regarding the case take off? In my paper, I suggest four potential answers.
First, procedure matters. Jurisdiction isn't just something that you study in Civil Procedure or Federal Courts. True, the "she worries" meme may have been especially popular among the fairly large number of lawyers at large in American society. But general media attention and other evidence suggests that at least some significant number of lay people also understand that courts have limited authority to rule. And those people can become incensed when they believe that that authority is being abused. The discourse on 303 Creative thus shows that the judiciary's descriptive legitimacy is, to some significant degree, tethered to its observance of jurisdictional principles.
Second, soundbites matter. The idea that the Supreme Court decided a "fake case" or "made up case" has a kind of popular resonance that sophisticated legal ideas don't, especially when coupled with a larger discourse suggesting shady happenings at the Court. Further, the unfounded "she worries" meme probably couldn't have happened without real-time, bite-sized mass communication. Commentators and audiences alike were ready to believe and repeat that the justices were simply ignoring obvious legal principles, based on true but misleading snippets of information. The fact that these extreme criticisms can't survive scrutiny didn't undermine their transmissibility. For instance, the "she worries" meme garnered quick uptake in a district court order—thereby proving that at least some chambers are attentively listening.
Third, popular views matter. The merits of the Court's end-of-term rulings were fairly popular, or at least not-that-unpopular, making procedural complications a relatively effective basis to indict the justices. For instance, race-based affirmative action and student debt-relief certainly have their supporters, but polls suggest that they are also nationally unpopular, or close to it. Whether the merits ruling in 303 Creative was unpopular is unclear at present. That uncertainty stems partly from abiding animus toward LGBTQ persons, but it also partly stems from significant support on the left for strong rights of free expression, including rights against compelled speech. Potential procedural problems may thus have been a relatively alarming feature of the Court's recent behavior.
Fourth, and most interestingly, power matters. In this essay, I have focused on the law as it currently stands. But the law of standing, like all law, is frequently (and appropriately) in motion. Almost a century ago, restrictions on justiciability were associated with the left. Why? Because the Supreme Court was conservative. Later, the Court became liberal—and conservatives took up the task of championing jurisdictional limits. Is the worm turning again? Are we seeing the start of a standing realignment, in which the left becomes markedly more hawkish on standing and some related doctrines?
This last possibility will be the subject of my next and final post.
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The whole point of a meme is NOT being ‘legally founded’.
“law as politics”
The Supreme Court has always accepted free speech cases based on some perceived threat, as opposed to actual injury. What’s the big deal with this?
What needs explaining? You know people don’t like the result and they really want to be able to say: I’m not just complaining because I don’t like the result, this is different. This let’s them.
Same people say after a break up: I’m not angry about being dumped it’s how they did it. We want to think we aren’t being a cry baby and it really was different when we lost.
Right. The principle of Cuius bovis infixa est</em or Whose Ox Is Gored, applies here.
Absolutely.
Wile E. Coyote. Pure genius.
Or maybe it’s explained by the fact that if you actually read the briefing, this looks like a contrived case.
I get the sort of broad brush point that “liberals are often pro-super broad standing”. So yeah, if you just think liberals always favor standing, this case is somewhat interesting.
But do liberals ever actually say “everyone should have standing”? If they don’t– and especially if they have seen their own cases, such as particularly City of Los Angeles v. Lyons, get dismissed for lack of standing- maybe they are suspicious of a woman who has no customers and certainly no gay customers and who says something that isn’t consistent with our experience (that they are totally fine with gay people and their only objection is to servicing gay weddings) and whose lawyers seem to be submitting fake evidence and who hasn’t been prosecuted by Colorado and who doesn’t look like she ever would be?
Like, we actually think the case is fake. It’s not some sociological experiment. We think this woman and her lawyers are faking it, and we are upset that a gigantic hole was carved into anti-discrimination law at the behest of a woman who we aren’t convinced is even likely to do business and who we think isn’t credible.
The fact that you compare this situation to abortion, the ultimate capable of repetition and evading review situation, is telling.
Fuck off. You’re perfectly fine with contrivances and fake cases as long as they push your leftist viewpoint so why should anyone hold themselves to rules you will freely violate whenever it is advantageous.
I am not perfectly fine with any such thing and I also don’t think bad conduct from one side justifies bad conduct from the other.
As I said the other day, a very high-sounding ideal with which I agree — in a vacuum. But if you really have that level of Solomonic even-handedness on this topic then you’ve chosen a passably odd time to suddenly drive a stick in the ground, particularly to such an unabashedly rabid degree.
Perhaps you could show us where you’ve railed against Lawrence, Griswold, and other “good” test cases with anything close to this degree of obsession and vitriol (as opposed to, at a quick glance, some occasional lip-service grumbling as you’ve done here recently, and generally in response to being called out for inconsistency as you have been here recently).
I haven’t railed against them because they are old cases. But no, I don’t like collusive arrests as a basis for standing.
Ah, got it — certainly no sense in railing against cases that are… old. Like fine wine, they may first appear to suck, but improve with age. How am I doing?
Regardless, the good news is that if you can keep from popping a vein for just a little while longer, 303 Creative will be right there with them!
It’s not like such cases were ever contemporary and the internet didn’t exist then anyway.
The problem with 303 Creative is that it’s a contrived hypothetical. It doesn’t even make sense.
The conservative justices have shown a willingness, here and in Kennedy for example, to ignore the facts of a case in order to write a decision they’ve been itching to write anyway. There probably are cases like that from long ago on the left too, and yes they should be criticized.
What’s wrong with cases like this and Kennedy? It’s the justices’ way of participating in the politics of the moment, engaging in the culture wars. They’re not supposed to engage in politics for its own sake, and using a random case as a backdoor to do so is even worse than if they just wrote a political opinion piece in the WSJ or NYT. Bloviating in an editorial would be unseemly and mildly unethical. But mishandling a case to make a political point also warps the law, capturing and hardening a culture-war talking point into legal stone.
This case would’ve never arisen naturally. It’s a set of nonsensical stipulations that enabled the conservative justices to play politics with the law. The judicial branch should temper politics by pointing out that real world cases don’t actually resemble culture war caricatures, not inflame them further by embedding those caricatures into law.
What was contrived about Lawrence? There was some fancy lawyering to get it in front of SCOTUS, but the case itself was legit — it wasn’t a collusive arrest, let alone a stipulated heap of garbage fantasies.
You keep citing City of Los Angeles v. Lyons, but it really is inapposite. Los Angeles did not promise they would choke Lyons in the future. Colorado did promise they’d enforce their anti-discrimination law against 303 Creative.
They did no such thing. Indeed, their brief contained extensive claims that they did not plan to.
Battle of the conclusory one-liners — more popcorn, please!
Presumably whichever one of you is actually right could readily end this with a quick cut and paste (that’s control-CEE; control-VEE) of CO’s actual language. But what fun would that be?
Has this professor mentioned yet that Lorie Smith is a gay-bashing, obsolete bigot?
(Spoiler: If he is a Federalist Society member, the likelihood he will mention that point resembles the likelihood the Yankees will defeat the Athletics in this year’s World Series.)
For anyone who believes in free speech, she has a right to her opinions.
Correct! Religion-addled, old-times conservative bigots have rights, too — including the right to express their stale, antisocial ugliness.
NPC Alert.
NPC Alert.
Flip-flopping as a means to an end is nothing new, or even interesting. Mostly because of its transitory nature. Whoever on the left seems now to argue for some strict interpretation of standing, won’t be doing it for long. It’s like anything else (like deficits/debt on the right). It does highlight though why motives can matter. Arthur C. Brooks is famous for endlessly arguing not to judge motives, just arguments. That’s kinda nutso. Human beings are making these arguments (at least for now, maybe not for much longer).
^ This.
so what are you actually claiming ? That she faked her conscience objection? That she really wants the publicity? You use her very same vocabulary in trying to make the case look absurd. “wrong” “immoral” “conscience”
What gives? My neighbors, work acquaintances , and friends get her position, why don’t you????
You get her position because it’s been spoon-fed to you by right-wing talk shows.
The justices aren’t supposed to be responding to right-wing talk shows in their jurisprudence. They’re supposed to be responding to actual, real-life situations.