The Volokh Conspiracy

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Why Does (It At Least Appear That) Justice Barrett Applies "New," "Heightened," and "Elevated" Standing Rules?

Justice Barrett adamantly resists the suggestion that she keeps leveling up the burden on plaintiffs, but it is becoming more difficult to deny.


In Murthy v. Missouri, Justice Barrett wrote, "We begin—and end—with standing." And she meant it! Her majority opinion stretches nearly 30 pages, and it focuses entirely on standing. I don't think I've ever read anything quite like it. Not a single plaintiff has standing against a single defendant. Justice Barrett takes a sledgehammer to every single conceivable standing argument, and explains why it won't work. It reminded me of the scene from the Matrix Reloaded where Neo single-handedly destroys every single Agent Smith. Just when you think there are more arguments from the 26,000 page record, Barrett demolishes them. And at the end, she just flies away without touching the merits. Justice Barrett was on a mission! Though, I think the analogy fails, because the dissenters took the red pill.

Here is the test Barrett puts forward:

Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.

It is a tall order! The standards she erects are so byzantine, it is unlikely that anyone could ever satisfy them. And maybe that's the point. Justice Barrett, more than anyone else on the Court, is serving as the gatekeeper. She is extremely stingy on cert grants. She turns away all emergency petitions on the shadow docket (unless they're from the Fifth Circuit). She no longer believes in cert before judgment. And she forces lawyers to establish standing to a degree of certitude I've never seen before. Critics often charge that the Roberts Court is slamming shut the courthouse doors. Justice Barrett is the embodiment of that theme.

Perhaps Barrett would defend herself by saying she is simply applying longstanding precedent concerning jurisdiction. If she were right, then my criticisms above would falter. How can you blame a Justice for faithfully adhering to settled doctrine? But Justice Barrett routinely heightens the rules for standing by imposing new exceedingly exacting rules to satisfy Article III–or at least that is how I see things.

I'll start with claims in Justice Alito's dissent, and then provide Justice Barrett's rejoinder.

First, what is the standard for traceability? The Fifth Circuit relied, in part, on Department of Commerce v. New York (2019). In that case, New York was able to challenge the addition of the citizenship question because it anticipated that fewer people would fill out the census, and thus New York might lose a seat in Congress. (As things turned out, New York still lost a seat in Congress.) Justice Alito argues that standing in this case flows naturally from Department of Commerce:

Hines did not need to prove that it was only because of those officials' conduct that she was censored. Rather, as we held in Department of Commerce v. New York, 588 U. S. 752 (2019), it was enough for her to show that one predictable effect of the officials' action was that Facebook would modify its censorship policies in a way that affected her. Id., at 768. Hines easily met that test, and her traceability theory is at least as strong as the State of New York's in the Department of Commerce case. . . . This is not a demanding standard, and Hines made the requisite showing—with room to spare.

The Court, however, does not find that Hines's injury is traceable to any conduct by particular defendants. And Justice Alito charges the Court with adopting a "new and heightened standard." Under the majority's standard, Alito writes, "it also would have been difficult for New York to determine which noncitizen households failed to respond to the census because of a citizenship question and which had other reasons." Alito describes the stringent standard of the majority as a "series of ironclad links":

What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook's rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.

Justice Barrett responds to this charge in Footnote 8:

By acknowledging the real possibility that Facebook acted independently in suppressing Hines' content, we are not applying a "new and heightened standard," as the dissent claims. . . . Nor is our analysis inconsistent with Department of Commerce v. New York, 588 U. S. 752 (2019).

How to distinguish those precedents? The District Court in the census case made an express finding that "the citizenship question drove noncitizens' lower response rates." But in Murthy, the district court did not identify "clear links between White House content-moderation requests to Facebook and Facebook's actions toward Hines." Is that the standard for traceability? "Clear links"? Or is it enough to show a "likely" or "predictable" connection? It sure seems to me that different standards were applied. But then again, Justice Barrett was not on the Court for Department of Commerce, and she may not have voted for standing in that case.

Next, let's consider redressability. Justice Alito wrote that Hines "easily satisfied that requirement." Alito did not think this test was demanding. It was enough to show that "Hines's past injuries were a 'predictable effect' of the Government's censorship campaign." Notice how Alito speaks of a Government as a single entity, rather than individual officials–a bureaucratic miasma. A keystone of Barrett's opinion is requiring Hines to trace each injury to a particular defendant, who can then redress that injury prospectively. But the Court finds that redressability prong is not satisfied. Justice Alito counters that "as with traceability, the Court applies a new and elevated standard for redressability, which has never required plaintiffs to be 'certain' that a court order would prevent future harm."

Justice Barrett responds to this claim in Footnote 11:

FN 11—As with traceability, the dissent is wrong to claim that we are applying a "new and elevated standard for redressability." Post, at 22. Far from holding plaintiffs to a "certainty" standard, ibid., we simply conclude that an injunction against the Government defendants is unlikely to stop the platforms from suppressing the plaintiffs' speech. . . . Facebook might continue to remove Hines' posts under a policy that it adopted at the White House's behest (thus satisfying traceability). But if the White House officials have already abandoned their pressure campaign, enjoining them is unlikely to prompt Facebook to stop enforcing the policy (thus failing redressability).

A huge portion of the redressability analysis is that the COVID pandemic has ended, and the Biden Administration no longer needs to jawbone on that topic. So even if redressability could have been satisfied in 2022 or 2023, the game is over in 2024. I suppose this is a problem with any suits against the government. Eventually, every policy runs its course, and an injunction may no longer make sense.

Third, there are other standing arguments that Hines did not raise, but that Justice Alito found persuasive.

Instead, the dissent draws links that Hines herself has not set forth, often based on injuries that Hines never claimed. . . .  Hines, however, never claimed as much—and the plaintiffs bear the burden to establish standing by setting forth "specific facts." Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) (internal quotation marks omitted). It is especially important to hold the plaintiffs to their burden in a case like this one, where the record spans over 26,000 pages and the lower courts did not make any specific causation findings. As the Seventh Circuit has memorably put it, "[j]udges are not like pigs, hunting for truffles buried [in the record]." Gross v. Cicero, 619 F. 3d 697, 702 (2010) (internal quotation marks omitted).

The citation to the Seventh Circuit opinion is odd. As best as I can tell, the "truffles" line originated in United States v. Dunkel, a 1991 per curiam decision from a Posner-Easterbrook panel. It reads more like an Easterbrook opinion than a Posner opinion, but I may be wrong. Yet Barrett quoted Gross v. Town of Cicero, a 2010 decision by Judge Tinder, that in turn quoted Dunkel. Why quote the derivative instead of the original? (For whatever it's worth, Judge Barrett filled Judge Tinder's seat.)

But in any event, neither Dunkel or Gross was about jurisdiction. And I think Justice Alito is right that courts have an independent obligation to establish their own jurisdiction. I don't think it would constitute waiver if a party failed to make a particular jurisdictional linkage. And I don't think it would violate the party presentation rule to find an alternate basis for jurisdiction. Barrett certainly doesn't suggest there is a waiver. Instead, she reaches for a colorful Easterbrookism. Alito writes:

The Court discounts this evidence because Hines did not draw the same links in her briefing. See ante, at 20, n. 7. But we have an "independent obligation" to assess standing, Summers v. Earth Island Institute, 555 U. S. 488, 499 (2009), and a "virtually unflagging obligation" to exercise our jurisdiction if standing exists, Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). "[A] case like this one, where the record spans over 26,000 pages" and the plaintiffs have provided numerous facts, deserves some scrutiny before we simply brush standing aside. Ante, at 20, n. 7.

At bottom, once again, Barrett faults he lawyers for not meeting a burden that she herself establishes.

I've made this point before, and I'll make it again. Justice Barrett spent virtually no time in private practice. During her time in academia, she engaged in zero litigation. And she had a very brief stint on the appellate court. She simply lacks the experience of a lawyer who has tried to seek expedited relief in a complex case with a fast-moving timeline. When she asserts that sophisticated litigants failed to meet a burden that is not clearly established in the case law, introspection would suggest that such a burden is not really present. I get the sense that Justice Barrett grades briefs like she would grade a seminar paper–or worse, give feedback at a faculty workshop. She has exceedingly high expectations which are borne based on her subjective sense of which cases belong in federal courts and which do not.

Now, the upshot of Barrett's jurisprudence is that it may keep blue states out of court with a Republican administration. And if tonight's debate was any indication, we may see those suits sooner rather than later. On that note, maybe Chief Justice Roberts should switch his vote to maintain Chevron? It would come in handy come January.

Update: Mike Davis makes a similar point: