Struggling with Standing

The Supreme Court's conservatives are not cutting conservative litigants any slack (and that's a good thing).

Conservative litigants have lost quite a few cases on standing grounds in recent years. I have an article discussing this in the September issue of National Review (titled "Standing Up" in the print edition). Here's a taste:

FDA v. Alliance for Hippocratic Medicine is one of several cases in recent years brought by conservative plaintiffs advancing conservative causes to the Court, only to founder on the shoals of standing. Also this term, in Murthy v. Missouri, the Court concluded that social-media users lacked standing to seek an injunction barring federal officials from pressuring social-media platforms to suppress or deplatform unpopular speech as "disinformation." Whatever improper conduct officials had engaged in to suppress speech in the past, Justice Amy Coney Barrett explained, no plaintiff could show the imminent threat of government action necessary to justify an injunction.

AHM and Murthy are not aberrations. In recent years the Court has turned away conservative challenges to the Indian Child Welfare Act, the Affordable Care Act, and Biden-administration immigration policies as well, all on standing grounds. If some hoped (or feared) that a conservative Supreme Court would loosen the standing barrier against policy-oriented litigation, they were sorely mistaken.

That a conservative Supreme Court insists on enforcing traditional rules of standing should be no surprise. Stringent standing rules have been a core element of conservative jurisprudence for decades. Current doctrine was shaped by the late justice Antonin Scalia as much as by anyone else, and it has also been a priority of Chief Justice Roberts, who sees it as a way of preventing political activists from using the courts to fight policy battles that belong in Congress or at the ballot box.

The idea of standing is grounded in Article III of the Constitution, which limits federal-court jurisdiction to "cases" and "controversies." The idea is that an individual litigant should have a sufficient stake in the outcome of a legal dispute to justify the exercise of federal jurisdiction over his claim. "In more pedestrian terms," as then-judge Antonin Scalia explained in a 1983 law-review article, "it is an answer to the very first question that is sometimes rudely asked when one person complains of another's actions: 'What's it to you?'" It is not enough to care deeply about a particular question. One has to have a sufficiently tangible stake if one wants one's arguments heard in a federal court.

In the article I also discuss some of the recent complaints about standing doctrine from the Right, including those put forward by Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit. I engage the latter quite extensively in my Wake Forest Law Review article, "Standing without Injury."

The complaints about standing from the Right, combined with continuing concerns about third-party standing, associational standing, and state standing, make standing doctrine poised for revision, and potentially in ways that do not easily conform to ideological priors or even to linear characterization (e.g. "easier"/"harder").  I suspect standing could become easier in some contexts, but more difficult in others. The question then will be whether standing's current critics will be happy with the end result. I have my doubts.

Comments

[Joe_dallas]

The question is how to get standing for actions clearly not authorized by congress
Money spent on border wall
student loan forgiveness

or
Government censorship - maybe lack standing for an injuction, but would not a suit for damages for the past censorship qualify

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

One would think that being a taxpayer would be enough, but the Supremes said Nope.

Didn't the Supremes also rule once that being a member of Congress was not enough?

I put it down to too many laws and too few judges, so instead of reducing the number of laws or increasing the number of judges, they just forbid real victims from prosecuting government.

We have a judicial system more concerned with ritual than justice.

[apedad]

" . . . but the Supremes said Nope," and they've said nope for over hundred years.

In a unanimous decision, the Court held that the administration of federal statutes "likely to produce addition taxation to be imposed upon a vast number of taxpayers" was essentially a matter of public and not of individual concern. The Court emphasized that it had no power to review or annul acts of Congress without showing that an individual had sustained or was in immediate danger of sustaining a direct injury as a result of the statute. Suffering "in some indefinite way in common with people generally" was not an adequate basis for judicial review.

Commonwealth of Massachusetts v. Mellon combined with Frothingham v. Mellon, Decided Jun 4, 1923

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Precisely. They are more concerned with ritual than justice. Allowing peasants to sue their betters? Unpossible!

Same as qualified and absolute immunity. The only standing judges care about is their standing with the local police and prosecutors, their fellow employees.

[David Nieporent]

Precisely. They are more concerned with ritual than justice. Allowing peasants to sue their betters? Unpossible!

“In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.”

[Stephen Lathrop]

Current doctrine was shaped by the late justice Antonin Scalia as much as by anyone else, and it has also been a priority of Chief Justice Roberts, who sees it as a way of preventing political activists from using the courts to fight policy battles that belong in Congress or at the ballot box . . . .

But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served.

What a shame that so few judges have the historical training to understand those two excepts in context of a legal and historical abomination like Bruen. Bruen stands as evidence that Chief Justice Roberts does not at all mind political activists using courts to fight political battles, so long as it is his court they use, and the decision they come down with meets his political approval.

[StevenF]

Being a CITIZEN should be enough in most cases.

[Noscitur a sociis]

The question is how to get standing for actions clearly not authorized by congress

Why? Courts don't have to be the last arbiter of every political disagreement.

Government censorship – maybe lack standing for an injuction, but would not a suit for damages for the past censorship qualify

Of course (if it's a suit by the person who claims to have been censored). Who's suggesting otherwise?

[Brett Bellmore]

But actions clearly not authorized by Congress aren't "political disagreements". They're illegal.

[Sarcastr0]

While I'm more on your side than Noscitur's, you've done some impressive circular logic here.

[ReaderY]

Perhaps so. But courts simply aren’t knights-errant to go roaming about righting general wrongs. They are limited only to cases and controversies where the plaintiff has a particularized stake in the outcome. It’s in the Constitution.

The general remedy is political - executive management, legislative impeachment, or citizens voting people out of office.

[Corve5]

Right, so the only remedy if you're in the 49% that pays taxes, that is, the whites and East Asians, is to convince the 51% who don't, the blacks, the mestizos, the single women, and the homosexuals, to vote to not siphon money for themselves.

[Rev. Arthur L. Kirkland]

That comment might have been precisely what a disaffected right-wing law professor envisioned when starting this white, male, movement conservative blog.

[Corve5]

White males literally built the modern world. And when they're gone, we'll be in the Dark Ages.

[Dan Schiavetta]

Corve5: you’re muted, for obvious reasons.

[Corve5]

Am I supposed to care?

[David Nieporent]

Since the whole point of trolling is for attention, yes.

[Brett Bellmore]

Illegal actions by government aren't general wrongs, though. they're legal wrongs, they fall right into the courts' wheelhouse.

And, why particularized? I don't see that word anywhere in the Constitution.

So, if the Prez says, "Bwah ha ha! You, Bob! Yes, you! I'm going out of my way to specifically hurt YOU!" you can go to court.

But if the Prez says, "Bwah ha ha! I'm going to go big here, and screw with EVERYBODY!", the courts are, "Eh, nothing for us here, the wrong isn't particularized." Bob is screwed, because too many people are being similarly harmed for the courts to care.

How does it make sense that it stops being a matter for the courts if you ADD victims?

That's not a legal principle, that's just the courts not wanting to do their job.

[Martinned2]

True, other options are available, but it's a tricky question.

In the UK the law on standing to challenge public acts is broader than in the US, and quite flexible: https://www.linklaters.com/en/knowledge/publications/alerts-newsletters-and-guides/2022/march/22/standing-in-judicial-review-proceedings-no-carte-blanche-for-public-interest-groups

In the Netherlands, NGOs can challenge public acts if, simply put, their articles of association identify the interest they are trying to defend as one of the objectives of the organisation, and if this is matched by their actual activities. But the courts can still be quite pragmatic in how they apply this. E.g. par. 4.2.7 of the Milieudefensie v. Shell climate case, where the claims of 17,379 individual claimants were rejected for lack of standing, while the seven NGOs did have standing: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBDHA:2021:5339

[Sarcastr0]

There's a very strong functional argument that when the executive acts ultra vires to grant a benefit, given Congressional paralysis and political checks being nonfunctional for even larger items, the lack of standing is a huge and easily exploitable way to avoid the last check that exists.

But the formalist distinction you're making between general and legal wrongs doesn't have any lines between the two I can discern.

The particularized wrong requirement arise out of the 'cases and controversies' part of Article III.

[David Nieporent]

But if the Prez says, “Bwah ha ha! I’m going to go big here, and screw with EVERYBODY!”, the courts are, “Eh, nothing for us here, the wrong isn’t particularized.” Bob is screwed, because too many people are being similarly harmed for the courts to care.

No; that's not what we're talking about. It's not the number of people affected that determines it. It's the nature of the asserted injury. If the president says, "I order everyone who was born on an odd-numbered day locked up without trial," that would of course affect half the population, but each of them has an individual injury and so each of them could challenge it. Particularized means that one needs something more than "I don't like that policy."

[Corve5]

If money from a person, even if it's already been aggregated into a large pool, is spent improperly, that's an injury.

If Biden gives free money to his constituents, mostly low functioning blacks and single women, that money came from white males, mostly conservatives. That's an injury.

[David Nieporent]

If money from a person, even if it’s already been aggregated into a large pool, is spent improperly, that’s an injury.

If whatever program is at issue is enjoined, the taxpayer doesn't get his or money back; it stays in the Treasury. The only injury the taxpayer has suffered is displeasure at how the money was spent.

[Armchair]

No, they are there to judge disputes.

Personally, I view it as a version of contract law. If you and I had a contract, and you broke one of the provisions, I would automatically have standing in court to bring a case. I wouldn't have to show "damages" from the breaking of the provision in order to hear the case, The fact that we were both parties to the contract would be enough. Now, Joe down the road who wasn't on the contract doesn't have standing on his own. But the parties to the contract should automatically have standing.

With the Constitution, each State needs to ratify it* , and each state is party to it. Each state should have the standing to challenge if the federal government has broken a provision of the constitution. This concept that a state, which is party to the Constitution, needs to show "damages" before it can even have standing is a bit ridiculous. And leads to the executive branch KNOWINGLY BREAKING THE LAW because they don't think anyone can actually challenge it, because of standing doctrine. And that's wrong.

*(Yes, I know, only a certain number of states needed to ratify in order for it to be enforced).

[David Nieporent]

The states are not parties to the constitution. The Articles of Confederation was a compact between the states. The entire point of the Constitution was to abrogate that arrangement. It was a compact of the people, not the states. (It's right there in the preamble: "We the People…")

[Armchair]

No David,

The preamble is just that...a preamble. An introduction, without legal force. If you want to understand what the Constitution is, you need to go to the text of the Constitution itself. And it is made very clear in Article VII.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."

Again.. "This Constitution between the States". Not between the People. Between the States.

This is consistent because parties to a compact or contract or treaty are the ones who ratify or sign the compact. And here, the states are the ones who are necessary to ratify the Constitution. The parties to a compact are the ones who are necessary to amend the compact. And once again, in article V, we see the States (via the State legislatures or convention) are the ones who are needed to ratify an amendment. Not the people.

There are government examples where they are compacts "of the people". The Fifth French Republic is a good example. That required a referendum of the people to get started. Amendments to the French Constitution require a referendum of the people to be approved. Note...the amendment requires the parties (the people) to approve via referendum. That is not in the US example.

Preambles sound nice, but that's it. The UN is a good example of this. The preamble literally reads "WE THE PEOPLES OF THE UNITED NATIONS".... Yet every other bit refers to the member countries....not the people. Because the UN is a compact between the member countries. Not "the people". The people don't decide squat in the UN...the countries do. And in many of those countries, the people don't have any say at all.

So, coming back to square one. Article VII of the US Constitution clearly notes that it is a Constitution between the States. Not the people.

[Sarcastr0]

So it's a contract full of vague, framework type language,
between immortal entities quite distinct from individual people in their incentives and responsibilities,
The entities change their makeup and character over the years.
which is binding on the whole set even if only a subset agreed.

No, Constitution as contract is simple, but wrong.

[jdgalt1]

The worst feature of today's standing doctrine is that it combines with the presumption that all newly enacted laws are constitutional, to make it impossible to secure a constitutional right on topics where legislators are willing to repeatedly reenact new versions of an unconstiutional law faster than courts are willing to strike it down. This is how New York's blatantly illegal Sullivan Act lasted more than a century.

The Supreme Court needs to be given, or take for itself, the power to win such races.

[Noscitur a sociis]

This is how New York’s blatantly illegal Sullivan Act lasted more than a century.

Can you elaborate? That doesn’t really seem like an accurate characterization of how things played out.

[ReaderY]

Err, umm, the Sullivan Act was entirely consistent with constitutional doctrine until at least McDonald, which was in 2010. Until then, there was no case holding that the 2nd Amendment was applicable to the states.

Moreover, Rahimi strongly suggests that the Supreme Court is simply not willing to go as far as commentators on this blog have suggested, and quite a number of supposedly “blatantly illegal” provisions are in fact legal by the boundaries the Supreme Court has set recently.

It is entirely New York’s right, given a new holding, to test the boundaries and see how far the courts are willing to go. It’s not like conservative states don’t do it. They did the same thing with abortion prior to Dobbs. Moreover, plaintiff’s lawsuits against laws that are constitutional by existing doctrine are simply a different way of implementing the same strategy. Everybody, liberal or conservative, does it. It’s part of the American system.

[Wally]

At least as far back as Roe V Wade establishing that there was a constitutional right to abortion and that constitutional rights at a federal level preclude state laws violating them, the Sullivan Act was at that moment unconstitutional.

[Noscitur a sociis]

I'd say I'm about .95 Robertses on the standing scale, but TransUnion is a holding that I find almost incomprehensible. I suspect that the policy results from overruling it wouldn't be ones I'd like, but I'd still like to see it go.

[ConservativeProfessor]

Would love to see this revolution put the torch to Flast v. Cohen, a true Warren Court abomination.

[loki13]

I mean, Flast has been so narrowed that it's kind of close to extinction.

That said, I actually agree with you. Get rid of the Flast exception. It has no good basis to exist given standing doctrine.

[Krayt]

There's something wildly wrong if nobody can contest draining the treasury of $450 billion in a way not conceived of by Congress, and nobody can take it to court except a guy who prints loan coupons losing a little bit.

[loki13]

Well, there are a lot of ways to deal with that.

I think the sickness that we have in America is threefold-

1. Everything is a Constitutional problem. It isn't.

2. Every problem can be solved with a lawsuit. They can't.

3. The Courts are the only ones capable of making decisions for all of us. I am big NOPE on that one.

Once again- in a normal and healthy polity, we attempt to resolve issues through elections and legislation. We should really try and get back to that.

[Ken Arromdee]

We attempt to resolve people *doing illegal things* through the courts. The problem here is that the program can be illegal, but the courts don't do anything because nobody has standing to challenge its legality.

[BrotherMovesOn]

That is hardly true. I believe I've seen your name before so you should know the cases discussed here. It's not hard to parse a court's discussion of a litigant's standing. Win some lose some.
I reckon that school of thought has more to do with ReaderY's comment below.

[loki13]

The issue is almost never that NO ONE has standing.

It's that some officious busybody who hasn't been harmed wants to make a point.

If it's just Ken, watching the news, screaming, THAT'S UNCONSTITUTIONAL, well ... cool beans. You don't get to sue.

[Wally]

Who does not have standing when the federal government silenced speech with the result of death and a certain future that the action will be repeated?
If the government decides you don't have standing for wanting to hear alternate views when the approved narrative is clearly lies, the only alternative is violence to overthrow what has become tyranny.

[ReaderY]

Standing with teeth has been a traditional Conservative theme. It’s interesting watching how the situatikn has completely flipped. MAGA “conservatives” are calling for judicial activism, standing be damned.

Hint: They aren’t real conservatives.

[Martinned2]

They're real conservatives, just not real principled when it comes to legal doctrines.

[Brett Bellmore]

I've never been very keen on standing as a way to bar litigants from the courts, going back for decades. But I'd hardly claim to be a typical conservative, so that doesn't mean anything.

[NvEric]

Stand on standing all you want, but standing is missing the realities of today.

With more law and statutes being created every year, it's those who follow the law who will be held back to a portion of those laws and statues which, if examined, will be found unconstitutional, thereby hindering the public unnecessarily. Until standard standing is met by violation of a law or statute, hindrance ensues. Once a violation happens, the amount of effort in the whole process is wasteful of time and resources.

Those writing laws and statutes must do a better job and there must be more oversight during the process by independent persons tasked with such duties. Most, if not all, states have such to help politicians.

If the proper amount of members in the House were elected, over 11,000, there would be fewer problems of this sort and less need for executive appendages. 11,000 seems like a lot, but they would be spread around the country in Regional Congresses. Such numbers would make "buying" them more expensive, and maybe they would instead do their assigned work. Being spread out and in more numbers also means they will get paid less because they won't need to travel as much and won't have as large of a staff.

[ReaderY]

But if nobody is arrested etc., why does anybody have a stake in the matter? Why should busybodies who want to argue endlessly that this or that “is just wrong” tie up our courts and prevent them from dealing with people’s real problems? As the OP quotes Justice Scalia, “What’s it to you?”

It is absolutely not the role of courts to provide “oversight” to the political branches. They are not Platonic guardians. They are not baby-sitters. The Constitution treats elected officials like adults. If you don’t like how they are doing, elect somebody else you like better.

[ForeignNerd]

The Supreme Court has upheld various forms of assignments of legal cases, both qui tam actions and other assignments. History has been cited to motivate that, but the conclusion has not been draw that this raises severe doubts about the injury-in-fact requirement.

Also, current doctrice is pretty silly when it says nominal damages of 1 dollar are enough to give standing, but deep-felt moral outrage is not. Certainly that distinction does nothing to make sure plaintiffs really care about the suit, avoid advisory opinions or anything like that.

Finally, the argument that standing doctrine leaves policy judgements to the political branches seems silly. It might incidentally do that in some cases, but a serious desire to leave policy judgements in hand of political branches would rewrite a lot of law, not tinker with standing doctrine.

[ReaderY]

There is nothing the slightest bit silly about that. Moral outrage merely reflects your decision to feel morally outraged, not an injury done to you. Anybody can claim to be morally outraged about anything. And in today’s climate where professing moral outrage is simply a rhetorical tool, people frequently do. Everybody these days seems to profess constant moral outrage about people they disagree with. It gets tiring.

I think the Franers were wise, and not silly at all, to say that indicviduals can’t use courts to meddle in others’ affairs just because they say they feel morally outraged by what others are doing.

It’s one thing to say that government can make fornication etc. illegal, leaving it to public officials to decide how much energy they want to put into prosecuting. It’s quite another thing to say that anybody who doesn’t like what other people are doing is entitled to sue them merely because they feel morally outraged by their behavior.

That would lead to chaos. Courts would be so busy with busybodies they’d have no time for real disputes.

[Martinned2]

Courts would be so busy with busybodies they’d have no time for real disputes.

That, right there, is the key issue I think. (That and the government defendants.) I don't mind busybodies suing the government, because such a case either leads to an unlawful act being struck down, as it should be, or nothing. But there's no way to organise that without seriously clogging up the system, which is why you need standing rules.

[Martinned2]

Here, as in other areas, the US would benefit from looking at what others are doing. In the EU it's quite difficult for an individual to sue directly in EU court against an EU law. You need to be directly and individually concerned, and when it comes to laws of general application individuals normally aren't. But the Member States have privileged litigant status. They can bring an action for annulment over any act or omission of the EU institutions, without having to show anything else in the way of standing. I would think that that would be an excellent rule in the US too. Let the states sue over any Federal act they like, but not individual citizens.

Of course, that would require a constitutional amendment.

[apedad]

I'd be OK with that as long as the states in turn allow their subdivisions, e.g., counties, parishes, etc., to sue them.

Goose - gander thing.

[Martinned2]

That's up to them. Each state makes its own constitution, which can include whatever standing rules it likes.

[Noscitur a sociis]

The difference is that states are sovereign in a way that their internal subdivisions aren't (and can't be, under the constitution). That said, states aren't required to use federal standing standards in their own courts—several allow them to issue advisory opinions in certain circumstances, for instance.

[Stephen Lathrop]

Martinned2 — In the U.S. that sorts poorly with the problem of too much minority-protective power already constitutionally mandated for the states. A state interest in one state is often an interest another state opposes. But the SCOTUS decides cases with legal effects which apply alike everywhere. A lawsuit from Texas about gun regulation is already a threat to the interest of Massachusetts to regulate guns in Massachusetts differently than Texas wants them regulated there. It would be unwise to act formally to make that worse.

[Brett Bellmore]

That's a bad example, because we have an on point constitutional amendment specifically making that a constitutional issue. The interest of a particular state in violating an explicit constitutional right isn't really the sort of thing the courts are supposed to give any weight.

Not giving state interests in violating constitutional rights any weight was actually the point of the 14th amendment, after all.

[Martinned2]

Massachusetts is allowed to regulate guns in whatever way it likes, and the courts would not interfere with that, as long as it doesn't do so in a way that is unconstitutional (or otherwise illegal).

But I must confess that I don't understand how your example responds to my suggestion of letting the states sue the feds more easily.

[Noscitur a sociis]

I believe Stephen Lathrop's point is that Texas can already make itself a gun-free-for-all state if it wants, which imposes negative externalities on Massachusetts that Massachusetts can't legislate against. He therefore thinks it would be even worse if Texas could also sue to invalidate the federal gun laws that help address these externalities. It's a fairly stupid argument and expressed in a bizarrely obscurantist way, but it's on topic.

[David Nieporent]

The difference between the EU and the U.S. is — as I alluded to in response to another comment above — the U.S. is not a compact between its states. The member countries of the EU are (AFAIUI) parties to the various treaties that have constituted the EU and its institutions.

[Noscitur a sociis]

A model where states get to second-guess federal law when they feel like has had traction at points in American history. Those aren't generally regarded as high points in the life of the Republic.

[Stephen Lathrop]

If you want to posit the Cases and Controversies Clause as an effective limit on the scope of Court power, I think you need to get rid of the Court's self-assigned prerogative to pick a question or two which interests justices, and instruct the parties to brief those questions. Too often, the questions thus raised have little or nothing to do with the cases in question, and everything to do with policies the Court has ambition to influence. Thus it was with the Trump immunity case.

Sometimes, questions are even predicated on facts contrary to those a case presents. Thus, the Court may announce a principle of decision based on a case which shows facts which contradict the principle. Sackett II was such a case. So was the recent web design case, decided on a premise that specific web design services had been demanded, when no such client actually existed.

Citizens United announced as a matter of fact the absurd proposition that an appearance of influence for corporate money in politics would not undermine people's faith in the integrity of government. Needless to say, no fact presented in the case supported any such nonsense. That inconvenience did not hamper the Court's inclination to write its own unsupported assertion of fact into law as a principle of decision in the case.

[Brett Bellmore]

"Citizens United announced as a matter of fact the absurd proposition that an appearance of influence for corporate money in politics would not undermine people’s faith in the integrity of government."

I'm not actually seeing how an appearance undermining faith would actually get you to "the government can violate the 1st amendment". Maybe people shouldn't have faith in the integrity of the government; I sure as hell don't. But where did this practice of adding an invisible "unless there's a good reason." to every prohibition in the Bill of Rights come from?

It's perfectly possible, and perfectly irrelevant, for speech or publishing protected by the 1st amendment to undermine the people's faith in the integrity of government. Every time a newspaper reports on a government corruption case they do that! Should the government be able to censor reporting on government corruption?

So, yeah, it was silly dicta, but not really relevant to reaching the holding, that the government can't use the fact that publishing requires spending money as a handle to regulate political speech.

[apedad]

Curious....do you have faith in ANY group, e.g., teachers, police, NFL, actors, clergy, farmers, truckers, etc., etc.?

Because the people who make up the government are also teachers, police, NFL, actors, clergy, farmers, truckers, etc., etc.

[Brett Bellmore]

No, not generally. All such groups are composed of human beings, who are corruptible. Extend trust where the evidence warrants it, which is sure as hell not the government.

But it wouldn't really matter if I did have faith in this group or that: The fact that some speech undermines faith in government can never be a justification for suppressing it. Never. Because maybe that trust isn't deserved, and isn't that exactly when the government would want the speech suppressed?

[apedad]

And yet we've somehow become the greatest nation on Earth (and yes not perfect which is impossible).

[Noscitur a sociis]

So, yeah, it was silly dicta, but not really relevant to reaching the holding, that the government can’t use the fact that publishing requires spending money as a handle to regulate political speech.

The government's main argument was that the regulation was permissible to avoid corruption or the appearance of corruption; the court rejected this arugment because "we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." How could that conclusion possibly be dicta, or "not really relevant"?

[Stephen Lathrop]

Noscitur — On the basis of what fact presented by the case before it do you suppose the Court reached its outlandish conclusion that no one thinks corporate money used to influence Congress will give rise to an appearance of corruption?

Also, I think I remember from somewhere that practices which give rise to an appearance of corruption in government are among the few legal grounds to overcome strict scrutiny. Do I misremember?

[Noscitur a sociis]

If you want to posit the Cases and Controversies Clause as an effective limit on the scope of Court power, I think you need to get rid of the Court’s self-assigned prerogative to pick a question or two which interests justices, and instruct the parties to brief those questions. Too often, the questions thus raised have little or nothing to do with the cases in question, and everything to do with policies the Court has ambition to influence.

Stephen Lathrop and Brett Bellmore have a lot in common: despite an almost comically superficial understanding of the subject, they can't resist latching on to one simple explanation for all the corruption they see in the world. And of course, everyone else's failure to solve that one problem is just proof of their malfeasance.

Thus it was with the Trump immunity case.

Like this! The Trump immunity case is a controversy between the United States government, which takes the position that Trump should be punished for committing certain federal crimes, and Donald Trump, who takes the position that he shouldn't. In the course of that litigation, Trump argued that he was immune from prosecution. The district court disagreed. Trump appealed that decision, and lost. He then asked the Supreme Court to grant a stay so he could seek further review on the immunity issue. The U.S. government agreed that the Supreme Court should review the issue, and so it agreed to consider the issue of "Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office"—the precise issue that the parties agreed was presented and that they wanted the court to resolve. What in the world do you think the Supreme Court should have done instead?

[Stephen Lathrop]

Noscitur — What you should have done instead is quote accurately the bases for Trump's appeal, and then compared them to what the Court said ought to be briefed.

[tkamenick]

The primary problem with standing doctrine is it's not required by the Constitution. It may be "grounded" in the concept of "cases or controversies", but it was made up by justices for prudential concerns.

The second problem is that those prudential concerns don't exist. Many states have taxpayer standing that allows the challenge of virtually any illegal government action by any taxpayer. They don't overburden the courts.

The third problem is that whatever prudential concerns it may actually be alleviating, it's causing worse ones. There are blatantly illegal governmental actions that the courts will allow literally no one to challenge.

[loki13]

Serious question for you- do you even lift, bruh?

Ahem. Sorry. Do you do any federal court litigation? The reason I ask is because if you did, you know that standing matters.

99%+ of the cases involving standing aren't the "BIG POLITICAL THING I AM ANGRY ABOUT TODAY!!11!!!" cases. They are the run of the mill civil cases that we see day in, day out.

And standing is what helps somewhat narrow the ability of plaintiff's attorneys to enlist officious busybodies to make a quick buck.

Iqbal/Twombly. Standing. These are good things. And I will remind you that standing was long-championed by conservatives for a very good reason.

(I have to admit that the 180 on Chevron and standing is bizarre to anyone familiar with even a little history. But today's so-called conservatives aren't exactly of the same lineage.)

[Noscitur a sociis]

(I have to admit that the 180 on Chevron and standing is bizarre to anyone familiar with even a little history. )

I don't think the standing reversal is that surprising: when restrictive rules were popular with conservatives, the federal judiciary was reliably willing to reach results that were more liberal than was possible through ordinary politics. After the Trump administration, conservatives feel like if they're strategic about it, they have a decent shot of getting the judiciary to impose results that are more conservative than would be achievable through politics. If you're the kind of person who cares about results over process, and big ticket issues over the day-to-day boring stuff, it's not hard to see why you'd reverse course.

Chevron is a little more surprising, since the first victims of Loper Bright are likely to be the first round of Trump administrative orders. But despite its origins, Chevron has been controversial within the conservative legal movement for a while.

[loki13]

I would reply in two parts, but IN REVERSE, because I'm perverse like that.

As for Chevron, I wouldn't say "for a while." I would say ... because of Obama. In other words, instead of understanding why we have Chevron, and why it is a conservative principle, they lumped it in as a way to attack Obama-era issues. It wasn't a switch in philosophy, so much as it was a specific reaction at a specific time that metastasized into what we have now.

Thinking ... I guess Obama was a while ago. Man, time flies.

As for standing, I am genuinely surprised. Not by the people who don't know much about the law and get their blood all angered by whatever they happen upon at the time (Area man passionate defender of what he imagine Constitution to be ...), but by people who should know better.

Standing is one of the great, and unqualified, conservative victories in jurisprudence. If you look back, you can see people caterwauling about the closing of the courthouse doors. But it's been internalized now. And that's a good thing! We want people litigating cases that have a stake in the case, not officious busybodies who have nothing better to do.

Eh, this bugs me. Usually, when I have the time and patience to fully explain why standing matters to someone, they eventually get it and come around. For the life of me, I can't understand how people that used to rail against the so-called black-robed tyrants are happy seeing judges allow cases that shouldn't be allowed, just because they really really really want to make themselves some law.

... but, as you note, I guess it's just about results now, right?

[Noscitur a sociis]

My state has very relaxed standing rules. I don't know if it overburdens our courts. (That is, I know our state courts are overburdened, but I don't know if that's why.) But it does make courts the final arbiter of almost every even mildly controversial political question, which is not a good thing! (It's especially not a good thing for conservatives, since our judges are much, much more liberal than the populace or the political branches. But it would still be bad if the situation were reversed!)

[lwt1960]

This topic seems this is part and parcel of why there is a perceived problem of confidence with the courts. The other stuff (free trips, flying upside down flags, etc.) is cheap partisan politics and not to be taken seriously. If you're moved by those arguments, well, better to leave my thoughts on that unsaid.

The issue seems to be simple. One branch of government does something which is reasonably seen as illegal. Lately it has been Executive Orders and other directives of the Administrative State that have received a lot of attention and seem to be a key element of the Progressive strategy to remake government. It would seem reasonable the branch responsible for being the referee, i.e., the Judiciary, would have a way to say "you can't do that".

The complaint about changing the current rules on standing of opening the floodgates to the court becoming the final arbiter of political disputes is compelling, but it certainly does not address the central issue of how stop the Executive/Administrative State from exercising more and more power not in the Constitution or acts of Congress.

If we could get a 100 word or less answer, as opposed to a treatise directed to other legal scholars, maybe the heat could get turned down a bit. Or maybe the Supremes just need a better PR person.

[lwt1960]

To wit...read the WSJ editorial about the new Senate bill to limit harm to minors by internet companies. I read this as the government has carte blanche to go after private parties for acts which it deems "may cause harm" (sans proof), whereas the public can't do the same for government actions without proving actual damage after the fact. It's not the courts which lack credibility, it's the entire Administrative State.

[Stephen Lathrop]

lwt1960 — The insight now dawning among the public is that for many decades the Court has decreed itself a part of the administrative state—and the dispositive part at that. Experience has shown that tendency to be alternatively bi-partisan. That is an insight which is likely to provoke political consequences involving the Court.

[Stephen Lathrop]

moved