The Volokh Conspiracy
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The Court Might Favor Standing For Business Interests, But Blue States Beat Red States
Justices Jackson and Kavanaugh both miss the obvious distinction.
Diamond Alternative Energy v. EPA presented the question of whether fuel manufacturers had standing to challenge regulations of fossil-fuel vehicles. Justice Kavanaugh, writing for seven members, found that the fuel company had standing. Justice Jackson, in dissent, found that the plaintiffs lacked standing.
Jackson's dissent repeats the familiar refrain that the Supreme Court is pro-business, and is more likely to find standing for businesses backed by the Chamber of Commerce than for civil rights plaintiffs. Jackson writes:
Standing is a constitutional doctrine meant to promote judicial restraint. By design, it "'prevent[s] the judicial process from being used to usurp the powers of the political branches'" and "helps safeguard the Judiciary's proper—and properly limited—role in our constitutional system." United States v. Texas, 599 U. S. 670, 675–676 (2023). But standing doctrine cannot serve that important purpose if the Judiciary fails to apply it evenhandedly. When courts adjust standing requirements to let certain litigants challenge the actions of the political branches but preclude suits by others with similar injuries, standing doctrine cannot perform its constraining function. Over time, such selectivity begets judicial overreach and erodes public trust in the impartiality of judicial decisionmaking. . . .
Jackson continues that the Court "rests its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs." She concludes that "[t]his case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens."
Justice Kavanaugh responds to Justice Jackson in a paragraph with a long string cite:
JUSTICE JACKSON separately argues that the Court does not apply standing doctrine "evenhandedly." Post, at 1 (dissenting opinion). A review of standing cases over the last few years disproves that suggestion. See, e.g., Alliance for Hippocratic Medicine, 602 U. S., at 374; United States v. Texas, 599 U. S., at 674; Haaland v. Brackeen, 599 U. S. 255, 291–292 (2023); Reed v. Goertz, 598 U. S. 230, 234 (2023); TransUnion LLC v. Ramirez, 594 U. S. 413, 417– 418 (2021); California v. Texas, 593 U. S. 659, 666 (2021); Uzuegbunam, 592 U. S., at 282–283; Thole v. U. S. Bank N. A., 590 U. S. 538, 541–542 (2020); Department of Commerce, 588 U. S., at 766–768.
Kavanaugh offers no actual analysis on this point. He simply lists a series of standing cases from the past five years that "disprove" Jackson's point that the Court is likely to find standing for "moneyed interests." Kavanaugh acts as if this point is self-evident. But there is a problem. The string cite doesn't actually make his case--or at least not without some substantial explanation.
Of the nine cases cited, only two are business cases. TransUnion found that only certain plaintiffs had standing to sue TransUnion. And Thole found that participants in a benefit plan lacked standing to sue the bank. These cases, which generally favor big business, do not rebut Justice Jackson's point.
Two of the case involve civil rights cases. Uzuegbunam found that a student had standing to challenge a University's censorship of his speech. And Reed found that a prisoner had standing to challenge a DNA testing statute. These cases sort of address Justice Jackson's point, but not directly.
The other cases concern ideological strategic litigation brought by states or public interest groups. First, Alliance for Hippocratic Medicine (2024) found that a non-profit lacked standing to challenge the FDA's approval of mifepristone. Second, United States v. Texas (2023) found that Texas lacked standing to challenge a Biden-era immigration policy. Third, Haaland v. Brackeen (2023) found that Texas (and private plaintiffs) lacked standing to challenge the enforcement of the Indian Child Welfare Act. Fourth, California v. Texas (2021) found that Texas (and private plaintiffs) lacked standing to challenge the constitutionality of the Affordable Care Act after the penalty was reduced to $0. Fifth, in Department of Commerce (2019), New York had standing to challenge the inclusion of the citizenship question on the census. There is a sixth case that Justice Kavanaugh inexplicably did not cite: Murthy v. Missouri (2024) held that Missouri lacked standing to challenge the Biden Administration's "jawboning" of social media companies.
What do these six cases have in common? Red states lack standing, but blue states do have standing. It's really that simple--or at least that is the perception here in Texas. To show the Court is being "evenhanded," Kavanaugh lists how often conservative litigants lose on an otherwise conservative court.
Early in Kavanaugh's tenure, I objected when he made a point about how President Clinton signed a "strict" immigration bill. I wrote:
I have no doubt that Kavanaugh's intent here was as innocuous as in Rimini. But the implication was very different: The Court was not being "strict" toward immigrants; a bipartisan Congress and Clinton were being "strict" toward immigrants. In other words, don't blame us for interpreting the law in a tough fashion—even a Democrat was fine with it.
As several Kavanaugh clerks promptly told me, it has long been Kavanaugh's practice to reference the name of the President who signed the bill. There is definitely a Schoolhouse Rock virtue here. But I also think it conveys a substantive point. Indeed, I often stress that President Clinton signed both DOMA and RFRA to stress the bipartisan nature of those laws.
In Diamond Alternative Energy, Justice Kavanaugh lists all the times that the Court ruled against conservatives to show how it is being "even-handed." I recently wrote that "If [Chief Justice] Roberts views himself as an umpire, his strike zone will ensure that the red team and the blue team usually play a close game, and neither side wins by a large margin." Kavanaugh, regrettably, suggests he is keeping score as well. Kavanaugh has similarly praised the Nixon appointees for ruling against the President who appointed them in United States v. Nixon. Why is that fact relevant unless the standard presumption is that a Nixon appointee should rule in favor of President Nixon? Is this how Kavanaugh thinks of things? I suggested as much after reading Gorsuch and Kavanaugh's perplexing decisions in the tax return cases.
In any event, when Justice Kavanaugh says these cases "disprove" Justice Jackson's argument, he is tacitly acknowledging how the Court refuses to grant standing to red cases, even as it finds standing for moneyed interests. Both Jackson and Kavanaugh miss the obvious distinction. Here, we have another manifestation of Originalism, Inc.
By the way, I did not know this factoid, which I learned in Justice Jackson's dissent: "Cass Gilbert, who designed the Supreme Court building, also designed the Chamber of Commerce's headquarters in Washington, D. C., and the New York Life building in Manhattan, among other major commercial offices."
