The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
This final post tackles the biggest question raised by the discourse surrounding 303 Creative v. Elenis: Is there reason to suspect that a standing realignment might already be underway? Here's the key discussion from my paper:
Begin with 303 Creative itself, which could easily be cited as evidence against the idea that legal culture is undergoing a standing realignment. Again, left-of-center jurists on both the court of appeals and the Supreme Court either supported standing or else left it unchallenged. Yet the discourse surrounding the case suggests that other trend-setters on the legal left are eager to push jurisdictional arguments in cases and contexts where liberal justices, so far, are not.
Moreover, other cases evidence a standing realignment. In the student loan case, for instance, Justice Kagan's dissent for the three liberal justices (herself included) emphasized standing as well as the merits. The key question was whether a particular loan service entity created by a state should count as part of the state specifically for standing purposes. Ascertaining the exact boundaries of state governments is an infamously murky undertaking, sometimes yielding different answers under different doctrines. Yet Kagan's dissent hit hard on this issue. So perhaps the left-leaning justices are ready to cry foul whenever standing is a close or open question under existing case law, and many left commentators are now ready to do so even when it isn't.
Other recent cases, too, have featured left justices enforcing standing restrictions, even when some conservative justices haven't. This pattern has become increasingly noticeable since Justice Kennedy retired in 2018, generating a clear conservative majority on the Court. Besides the student loan case, take United States v. Texas, which ruled for the Biden Administration on standing, yielding a solo dissent by Justice Alito. Or California v. Texas, where only Justices Alito and Gorsuch would have found standing. Related areas of justiciability are also at play. Take New York State Rifle and Pistol Association v. City of New York, where six justices rejected a Second Amendment claim as moot, with Justices Alito, Thomas, and Gorsuch dissenting. Additional examples of bipartisan standing denials include the failed efforts to challenge President Biden's victory in the 2020 election. These cases can be viewed as liberal wins, even without liberal rulings on the merits. All in all, standing (and some related doctrines) have emerged as a vital way for left justices to snatch victories from the jaws of a conservative Court….
In other areas, however, the Kennedy-era left/right divide on standing persists. Consistent with 303 Creative itself, left justices may remain relatively supportive of private standing (as opposed to state standing). Most saliently, left justices continue to support statutorily conferred standing in cases like TransUnion LLC v. Ramirez, even as the Court cuts back on it – a trend that may continue in next term's case on "tester" standing. These cases call to mind Kennedy-era cases like Lujan v. Defenders of Wildlife. …
These examples also show that the conservative justices aren't uniformly moving toward permissive standing. The conservative who has become most inclined to recognize standing is Justice Alito. In recent years, Justice Alito has voted for standing about as often as the liberal justices—albeit in different cases. Already, Justice Alito may be a more likely vote for standing than, say, Justice Kagan. However, most of the conservatives still tend to enforce vigorous standing rules. That fact is what makes it feasible for the three liberal justices to eke out jurisdictional wins on a supermajority conservative court. Thus, any standing "realignment" might not represent a complete change of relative ideological positions, so much as subtler reorientation. Neither the left nor the right may be easily pigeonholed as either standing hawks or standing doves across the board.
[Several] factors suggest that the conservative justices will continue to resist becoming standing doves, despite their new grip on the third branch. [Perhaps most importantly,] the conservative justices share a vision of the separation of powers that makes them relatively suspicious of congressional intrusion into the affairs of either the judiciary or the executive. Standing rules offer a handy way of implementing that vision.… Put cynically, standing is not just a hindrance to a conservative judiciary, but also a tool.…
What realignment means for left legal thought—if that is indeed taking place—is hard to anticipate. One possibility is that judicial complaints about the Court's overreaching might foster popular support for structural court reform. In recent years, left legal thinkers have increasingly turned away from their long-held celebratory views of the federal courts. Whereas prominent conservative intellectuals like Robert Bork once argued against strong forms of judicial review and in favor of legislative overrides, that mantle has now been taken up by progressive academics. From one standpoint, jurisdictional hawkishness, especially when in dissent, lines up well with those broader currents in favor of judicial disempowerment.
At the same time, however, a left resurgence on issues of jurisdiction could compete with political efforts at more fundamental reform. If the left-of-center jurists prove to be relatively successful at rendering the Court more self-restrained, then those victories would undercut the perceived need for legislative interventions, such as jurisdiction stripping. The Court, one might say, would already be cabining its own jurisdiction. And we have seen that those sorts of efforts have already borne fruit. So, in different ways, new jurisdictional hawkishness among left jurists might both feed the movement for court reform and stifle it.…
Judicial strategy is also involved. If liberal justices stretch to find standing in their most cherished areas of law, they will often succeed only in helping the conservative majority decide against them on the merits. So, rather than tolerate unilateral disarmament on standing, the liberal justices might opt for less standing overall – thereby at least preventing the conservative justices from maximizing their own ideological agenda. In other words, renouncing dovish standing might be the best way to maximize existing left legal priorities.
In taking that step, today's liberal justices would be following in the footsteps of early 20th century liberals like Justice Brandeis, as well as conservative jurists in the latter 20th century, such as Justice Scalia. And adopting that new role might be for the best. The legal system often benefits from having a bloc of jurists with a habit of enforcing strict justiciability limits, especially if other jurists (newly in power) might be tempted to loosen up. Counterintuitively, a dramatic realignment could be necessary to maintain a stable equilibrium.
That's all I wrote—or more accurately, all I have space for today. Please check out the article if you're curious about the full argument.
Thanks again to Eugene for inviting my posts, and to everyone who offered feedback on my draft paper!