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Three Flawed Opinions In Bost v. Illinois State Board of Elections
The majority and dissent’s understanding of standing turned on their visions of democracy. The concurrence does not fare much better.
Bost v. Illinois State Board of Election is one of the most difficult standing opinions I've encountered. This case is at once simple and extremely difficult. I've been struggling with Bost since I covered it in my Supreme Court simulation class this past semester. I found the Court's ultimate resolution unsatisfying and unpersuasive.
The question presented in Bost was whether a candidate for the House of Representatives has standing to challenge an Illinois law that permits the counting of mail-in ballots that are received after election day. Both the District Court and the Seventh Circuit found that Representative Michael Bost lacked standing. Bost, a Republican, serves in a gerrymandered district, where his margin of victory was significant. The lower courts found that there was no realistic chance that the late-arriving ballots--even if they all went for the Democratic candidate--could make a difference in the outcome of the race. As Justice Jackson wrote in dissent, Bost "never alleges that untimely ballots are more likely to break against him and in favor of his opponent." And the lower courts found that the candidate does not have an interest in padding his margin of victory.
Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Barrett concurred in the judgment, joined by Justice Kagan. The Chief found that the candidate has standing because he is a candidate: "As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election." Justice Barrett, by contrast, found that the candidate has a pocketbook injury, and would not have created a "bespoke" rule for candidates. She wrote, "Bost has standing because he has suffered a traditional pocketbook injury, not because of his status as a candidate."Justice Jackson dissented along with Justice Sotomayor, finding that any purported injury was self-imposed in light of Clapper.
Who can challenge the rule?
As a general rule, candidates have standing to challenge election rules because those rules directly regulate the conduct of candidates. For example, a rule requiring that a certain number of signatures must be collected imposes a burden on the candidate. A rule requiring disclosure of contributions also imposes a burden on the candidate. Also, as a general rule, regulations that make it harder to cast votes can be challenged by voters. For example, requirements to sign absentee ballots in a certain way, or restrictions on where ballots can be dropped off, will impose costs on voters. Voters would have standing to challenge these rules.
But what about regulations that make it easier for voters to cast votes? Such is the case in Illinois, and many other states. The relevant law permits the state to count mail-in ballots that were mailed before election day but were received after election day. No voter would have standing to challenge this permissive rule of inclusion. The law imposes no burden--only a benefit. (Policies like DACA are exceptionally hard to challenge in court because they primarily provide benefits.) Voters could not base a claim on an interest in avoiding voter fraud. Voters do not have a generalized interest in the fairness of an election.
As a result, the only party that could conceivably challenge this rule would be a candidate. In the worst-case scenario, imagine that there is a very tight race, and the margin of victory turns on counting these late-arriving ballots. At that point, the losing candidate would have standing to challenge whether those ballots should be counted. We saw similar claims raised in the wake of the 2020 election. But as the 2020 election demonstrated, the Supreme Court wanted absolutely nothing to do with eleventh hour litigation. From a practical perspective, it would make some sense for candidates to file a pre-enforcement challenge against the rule. But bringing suit before the election raises a host of problems.
Put aside the standing analysis for a moment, and consider the timing. A person is a "candidate" for a fairly limited period of time. That span would run from when the person is certified to appear on the general election ballot and concludes when that election has a certified winner. This period will usually last less than a year, sometimes only a few months. It is extremely unlikely that a pre-enforcement challenge would move quickly enough to go from the district court to the Supreme Court in that span. Invariably, as the litigation trickles up to the Supreme Court, the complaint filed based on a past election will become obsolete, assuming the candidate ever runs for reelection. In Bost, the complaint was filed in May 2022 based on the 2022 election. Now, we are gearing up for the 2026 midterms. The world has changed since then. Indeed, boundaries can be redrawn, political sentiments can shift, and a politician's popularity might change.
The Standing Puzzle
Candidates will generally have standing to challenge election rules. After all, most ballot access rules directly affect the candidate. But the Illinois law was different, insofar as it regulated voters. There was a somewhat comical exchange during oral argument in which Justice Kavanaugh asked, repeatedly, if the candidate was the "object" of the regulation.
CLEMENT: Look, if it helps me to say they're the direct object, I'll say it. But I do kind of think it's a -
JUSTICE KAVANAUGH: They're an --an object.
JUSTICE KAGAN: It might help you with some people and not with other people.
CLEMENT: Yeah. (Laughter.)
The majority did not address the argument that Bost is the object of the Illinois law; Justice Jackson expressly rejects that argument under FDA v. AHM. Thus, Bost had to argue something of an indirect injury.
An election rule that does not regulate the candidate creates very different logistical hurdles. Or at least it creates difficult hurdles for Republicans. There is an asymmetry, as Democratic governments favor looser election integrity rules while republican governments favor tighter election integrity rules. Accordingly, the burden will invariably fall on the right side of the aisle. It is thus a bit of an anomaly in Watson v. RNC that Mississippi, a deep red state, is defending its mail-in ballot rule against a Republican challenge.
If we just keep things simple, of course the candidate has standing. Every candidate in Illinois will have to employ staff to monitor the counting of ballots after election day. That is an entirely foreseeable pocketbook injury that every politician will incur. Standing, QED.
But if you dig a bit deeper, the question is tougher. First, under Clapper, this injury can be viewed as self-inflicted. Nothing Illinois has done requires the member to pay poll watchers and other staff after election day. The Democrat-controlled state tells the Republican member to "trust us" to ensure a fair election process. (You can perhaps sense my cynicism.) Second, under Alliance for Hippocratic Medicine, is it necessarily foreseeable that the late-arriving ballots in that race will actually make a difference? If the member has a landslide victory, then those ballots will be irrelevant, and will not cause a cognizable injury. Bost has one of the few gerrymandered Republican districts in the state, which is packed with Republican voters to ensure that Democrats in other districts will win. (I doubt there are any Republican candidates in Illinois who would ever be in a close-enough election where the untimely ballots would make a difference; gerrymandering ensures all the margins are lopsided.) It's not enough that the rule could affect someone's election; the rule has to affect Bost's election. To use AHM as an example, there might be some pregnant women who suffer complications from using mifepristone, but the Court found it too remote that one of the plaintiffs would have to treat that patient. (If politicians have an interest in fair elections, why don't doctors have an interest in seeing healthy pregnancies come to term?)
There are obvious responses to these arguments. First, the Court can take judicial notice of how important it is for candidates to ensure the integrity of an election, and to promote a general sense that elections are fair. (The Court likely has doubts of how Illinois election officials would behave if not being monitored.) Second, federal judges should not be in the business of prognosticating ex ante the outcome of a race in light of past races. If ever there was a political question, this is it. As a result, courts should just presume that there will be an injury.
Back to the other side. Bost's argument dispenses with the requirement that the plaintiff bears the burden of establishing every facet of standing, and an injury in fact cannot simply be presumed. Lurking in the background is the "nightmare scenario" where this rule can only be challenged in the heat of an election where the Justices would decide the outcome. During oral argument, the Justices demonstrated they are still suffering from PTSD from the 2020 election. What a mess! As I said, I have been struggling with this case for months.
Three Flawed Opinions
The three opinions in Bost did little to resolve this standing puzzle. Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. The Chief's opinion was only ten pages long. The shortness is a tell. When the Chief writes something so short, you are being served a John Roberts blue plate special. On the first read, everything makes sense and the answer seems so obvious. But when you read the responses, you realize the majority opinion is built on smoke and mirrors. The Lady Gaga song "Abracadabra" plays in my head when I read a Roberts opinion.
Alas, the other opinions do not fare much better. Justice Barrett, joined by Justice Kagan, concurred in judgment. The two former procedure professors profess to take the high ground, and refuse to depart from long-standing doctrine. But the core of their analysis requires the same inferential leap that the Chief Justice pretended he didn't take: candidates will necessarily incur pocketbook injuries because they are candidates. There is actually very little distance between the majority and concurrence.
Then there is the dissent by Justice Jackson, joined by Justice Sotomayor. The dissenters are so worried about how an expanded standing rule could create a slippery slope that they ignore the present-day consequences of denying standing. Moreover, despite their paean to democracy, the dissenters would force judges to make prognostications about overt political matters. For Chief Justice Roberts, the alpha and omega is democracy--or at least how he sees it. And Justice Jackson sees democracy very differently.
Having now read the three opinions, I have no idea who made the best case. Maybe they're all wrong?
Democracy in America
The core of the Chief's standing analysis turns on how he views election law. Roberts writes:
To start, candidates also have an interest in a fair process. Candidates are not common competitors in the economic marketplace. They seek to represent the people. And their interest in that prize cannot be severed from their interest in the electoral process—a process "of the most fundamental significance under our constitutional structure." Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979).
There is so much packed into three sentences. First, the Chief writes that candidates are unique in the "economic marketplace." Why economic? That is not the typical word one would expect to describe candidates for office. There is certainly a marketplace of ideas, and money is needed to participate in that market (hello Citizens United), but an economic marketplace? Second, Roberts views that unique role in the economic marketplace as trying to represent the people. And that goal is treated as a "prize." Again, another monetary-related phrasing. Third, we get to the crux of the analysis. A candidate's interest in the prize of representing people "cannot be severed from their interest in the electoral process."
Roberts continues that the harm faced by candidates is different from the harms faced by general members of the public. I hate to descend into officer stuff, but I will. The Constitution draws a sharp distinction between appointed and elected officials. Elected officials have this special accountability, while appointed positions do not. And the Chief Justice accentuated this point in both Free Enterprise Fund. Quoting Federalist 72, Roberts wrote, "[t]he people do not vote for the 'Officers of the United States.'"
Why don't voters have a similar interest in the outcome of elections? Roberts explains, "An unfair and inaccurate election plainly affects those who compete for the support of the people in a different way than it affects the people who lend their support." And, citing Judge Oldham's Hotze dissent, Roberts writes that candidates have a greater interest in knowing what the "will" of the people is.
In dissent, Justice Jackson writes that Roberts gets things "exactly backwards." She counters that the particularity requirement of Article III standing is a bedrock of democracy. In other words, the standing rules ensure that political disputes are resolved in the representative branches, while only legal disputes are resolved in the courts. Jackson writes, "In other words, the particularity requirement ensures that the Judiciary stays in its proper lane, leaving to the people's representatives the prerogative to decide questions of broad importance in the absence of a litigant with a 'direct stake in the outcome.'" Justice Scalia conceived of standing doctrine as a bedrock of the separation of powers. Jackson states further that candidates do not have some greater interest than voters. Rather, the people, and their will, is the root of sovereign power:
Lest we forget: In a democracy, elections are not mere candidate-centered bouts; rather, they determine the fate of the community. Elections, after all, are the mechanism through which We the People (exercising our collective will) decide who gets to represent us. In a government of the people, by the people, and for the people, "those who compete" in an election, ante, at 5, are ultimately vying to become public servants—not simply winners of a game. Thus, it is misleading to suggest that those who "claim the right to voice the will of the people," ibid., have an exclusive interest in electoral fairness. To the contrary, those "who lend their support" as voters, ibid., are the primary stakeholders.
Did anyone else think about Chisholm v. Georgia when reading this exchange? There is nothing new under the sun.
The Chief Justice declines the opportunity to "theorize" about the interests of candidates and voters. But he cannot brush away that topic so easily. As Justice Jackson states in dissent, the Court's "distinction between the interests of candidates and voters in fair election outcomes . . . raises the comparative question, not mine." I think Jackson gets the better of the argument here.
Reputation and Transunion
At the outset of the opinion, the Chief Justice lists a host of different possible injuries. One of them was that an unlawful election rule "might decrease [the candidate's] vote share and damage his reputation." Roberts said the Court does not need to resolve if Bost adequately plead this injury. Yet, a few paragraphs later, Roberts seems to resolve this exact question. He writes:
Rules that undermine the "integrity of the electoral process" also undermine the winner's political legitimacy. Crawford v. Marion County Election Bd., 553 U. S. 181, 197 (2008) (opinion of Stevens, J.). The counting of unlawful votes—or discarding of lawful ones—erodes public confidence that the election results reflect the people's will. And when public confidence in the election results falters, public confidence in the elected representative follows. To the representative, that loss of legitimacy—or its diminution—is a concrete harm. "[R]eputational harms," as a general matter, are classic Article III injuries. TransUnion LLC v. Ramirez, 594 U. S. 413, 425 (2021) (citing Meese v. Keene, 481 U. S. 465, 473 (1987)). But they are particularly concrete for those whose very jobs depend on the support of the people.
Justice Barrett makes a similar point in her concurrence. She writes "Invalid ballots, he says, will put his election at risk and damage his reputation." Barrett contends that the majority failed to comply with Transunion: "The Court makes no attempt to demonstrate that the bare fact of facing changed vote-counting rules is a traditionally recognized harm. See TransUnion LLC v. Ramirez." I guess she did not buy the reputational harm argument, even though she mentioned reputation.
Justice Jackson responds to the reputation argument:
Bost fails to clear even that low bar. At most, he alleges that he "risk[s] injury if untimely and illegal ballots cause [him] to lose [his] election" or "reduc[e]" his "margin of victory" in a way that harms his reputation. App. to Pet. for Cert. 68a–69a (emphasis added). But his complaint and supplemental declaration include no—zero—allegations to support an inference that such risk exists, or is at all substantial, in his own case; for example, he never alleges that untimely ballots are more likely to break against him and in favor of his opponent. . . . Examined closely, Bost's averment is that, if the vote counting continues, he could receive fewer votes, which could cause him to lose the election or could damage his reputation among voters and donors. No other allegations make this harmful outcome likely or otherwise substantiate the risk that any of these potential problems might actually occur.
Again, I think Jackson has the better argument here. But on the big picture, the majority prevails.
The U.S. Report is not the Cook Report
I think that Justice Jackson is right to call the Chief's focus on candidates rather than on voters as undemocratic. But I think that Justice Jackson's proposed method of determining standing is perhaps even more undemocratic. What business to courts have to make these determinations?
Roberts writes:
Even if some candidates could muster evidence well before election day that a rule will likely be outcome determinative, respondents' and the dissent's approach would convert Article III judges into political prognosticators and"invite[] findings on matters as to which neither judges nor anyone else can have any confidence." As a number of prominent historical figures can attest, not least among them Charles Evans Hughes and Thomas Dewey, "accurately predicting electoral outcomes is not" a "simple" endeavor. And if the prognosticators themselves lack the "political clairvoyance" to predict the winner after all votes have been cast, then surely judges are poorly positioned to assess whether a candidate's risk of loss, months earlier, is substantial
Roberts writes that Jackson's approach is indeed "undemocratic." If you want evidence, read the Seventh Circuit opinion. The panel extrapolated the likelihood that late-arriving mail-in ballots would make a difference based on Bost's success in the prior congressional election. As Paul Clement observed during oral argument, "the Article III equivalent of the Cook Report seems like something that should be avoided at all costs."
I think the Chief made many mistakes, but Jackson's proposed alternative is far more problematic. Maybe the right answer is that under current doctrine, it is impossible to establish standing to challenge this rule before the ballots are received. If the race is a landslide, no candidate would bother bringing the case. If the race is close, then there would clearly be an imminent injury, and judges would not have to prognosticate. That is certainly an unsatisfying message that neither the majority nor the dissent would want. But jurisdiction is a cruel mistress. Some bad deeds simply cannot be challenged in court on leisurely timelines.
Justice Barrett's concurrence
So far, I have focused mostly on the divide between Chief Justice Roberts's majority opinion and Justice Jackson's dissent. Here, I'll turn to Justice Barrett's concurrence in judgment, which was joined by Justice Kagan.
During the oral argument, Justice Barrett (as she usually does) signalled how she will vote. For starters, Barrett expressed a discomfort in creating some new standing rule for candidates. She asked Paul Clement how the bespoke rule would far under Transunion:
JUSTICE BARRETT: Mr. Clement, when you say these two classic injuries, how does -how, if at all, does TransUnion affect this? Do you have to show that there is some sort of history and tradition that this is the kind of injury, either the vote margin or the risk of electoral loss that counts as a cognizable injury?
Barrett repeated this same question later, and noted that Clement had argued TransUnion:
JUSTICE BARRETT: So you make a lot of practical arguments that I think have force. What do you think --what effect, if any, do you think that adopting your theory would have in other areas of standing law? Because we've been pretty careful about procedural injury. You know, an excellent lawyer who argued TransUnion convinced us to do that.
With the benefit of hindsight, we know that the majority--including Justice Kavanaugh--just ignored TransUnion.
Clement realized that Barrett was not buying his primary argument, so he defaulted to his backup argument: there is a classic pocketbook injury.
CLEMENT: So two thoughts on that. I mean, one, if we have to, then I think the pocketbook injury just makes it easy because that's classic, go back, Blackacre, White --you know, whatever that's the classic old-school injury.
But Clement explained that the pocketbook injury is somewhat artificial. Bost can only claim that injury because he is a candidate--and that was his primary argument.
The second thing I would say, though, is I do think there's some artificiality in some of these contexts to force everything to be run through the pocketbook injury. I mean, the --Congressman Bost is injured in the pocketbook, but that's because he's a candidate in an election with a ballot with his name on it.
Despite these admonitions, Justices Barrett and Kagan still went down the pocketbook road. The concurrence states:
Invalid ballots, he says, will put his election at risk and damage his reputation. To avoid these reasonably probable harms, his campaign "has spent, and will spend, money, time, and resources to monitor and respond as needed to ballots received by state election officials after the national Election Day."
This argument presumes too much. The ballots will only put his election "at risk" if the margin is close. And Barrett declines to address whether there is actually a reputation injury he has. Generally, people cannot spend their way to standing. Nothing Illinois has done requires Bost to spend this money. There really is not much of a difference between the majority and the concurrence. This pocketbook injury flows from the premise that candidates are special.
Justice Jackson responds to Barrett's pocketbook injury. Jackson writes that "in the absence of any allegation establishing that [Bost] actually faces a substantial risk of losing the election or having his margin of victory diminished in a meaningful way, Bost has taken those precautions based on the mere (and by all accounts remote) possibility that such harms will otherwise materialize." In other words, Boat "is spending money to ward off speculative future injury." This is the very sort of self-imposed injury that the Court rejected in Clapper.
Barrett countered by citing a brief from the League of Women Voters, which said it would be "political malpractice" to not monitor the counting of mail-in ballots.
Accordingly, it is standard practice for campaigns to send poll watchers to monitor ballot counting to ensure that any discrepancies are resolved appropriately. See Brief for League of Women Voters et al. as Amici Curiae 20 (calling it "political malpractice" for candidates not to monitor ballot counting in their races). Because Congressman Bost's expenditures mitigate a substantial risk of harm, he has pleaded Article III injury.
This argument is doubly problematic. First, I don't think Justice Barrett is staying in her lane. She is basically taking judicial notice of political practice. Second, if this malpractice argument is right, then Barrett's rule would lead to candidates having standing to challenge nearly 100% of election rules that do not affect them.
Roberts v. Barrett
On the current Court, Chief Justice Roberts and Justice Barrett are the best writers. Back in the day, Justice Scalia was a run-away first, with no one close by. Since Scalia's passing, the top of the pack has been tighter. The Chief remains in first place, especially in the rare case where he opens up in dissent. I recently re-read his Obergefell dissent, and it is still a brilliant specimen of judicial craftsmanship. If only we saw that JGR more often. I used to rank Justice Kagan as a close second, but she has drifted a bit in recent years. Her prose is less tight than it used to be, and there are fewer memorable lines. While her writing can still come across as witty, it is increasingly snarky.
At this point, Justice Barrett has eclipsed Justice Kagan for second place. She has a remarkable gift for conveying many ideas in few words. Nothing is wasted. Every syllable serves a purpose. And perhaps most importantly, Barrett's work needs to be read only once. The Chief Justice's biggest failing is intentional: sometimes he attempts to obfuscate a weak part of his opinion. Roberts has a tell: if I ever have to re-read one of his sentences, I know he is trying to pull something with misdirection.
On the current Court, it is very rare for Chief Justice Roberts and Justice Barrett to be on opposite sides of a case. They are both in the majority more than 90% of the time. And even where they disagree, they rarely engage in each other. For example, in Trump v. Illinois, Roberts wrote the majority opinion and Justice Barret wrote a concurrence. To this day, I do not fully understand where the majority and concurrence differ.
Bost v. Illinois was a rare case where Roberts and Barrett were on different sides of an issue, and they directly engaged each other. Indeed, this skirmish was in an area where Justice Barrett has particular expertise: jurisdiction. Justice Barrett faults the majority for relieving the candidate from a burden of showing standing:
By holding that a candidate always has an interest in challenging vote-counting rules, even if those rules do not impose a competitive disadvantage on him, the Court today relieves candidates of having to show any real harm. . . . Elections are important, but so are many things in life. We have always held candidates to the same standards as any other litigant. I see no reason to afford candidates favored status.
Yet with Barrett's rule, there will always be a pocketbook injury.
Roberts responds to Barrett:
Adding monetary harm to the equation, as the concurrence proposes, would change none of this. Post, at 2–3 (BARRETT, J., concurring in judgment). Plaintiffs cannot "manufacture standing by voluntarily" incurring costs. Federal Election Comm'n v. Ted Cruz for Senate, 596 U. S. 289, 297 (2022). They must incur those costs to "mitigate or avoid" a "'substantial risk'" of some independent harm. Clapper v. Amnesty Int'l USA, 568 U. S. 398, 414, n. 5 (2013).
There is no response to Clapper, unless you presume the Chief Justice is right that candidates are special. Roberts explains that Barret's approach has all of the same "concerns" as the majority's approach, plus a new one:
Acknowledging as much, the concurrence ultimately speculates that it is "reasonably probable" Congressman Bost's election will be at risk because of discrepancies in late-arriving ballots. Post, at 3. Such conjecture—beyond finding little support in the pleadings—carries all the concerns we have explained. And the concurrence's approach introduces a new one: Apparently, a candidate who pays poll watchers a penny would have standing, while one who relies on volunteers would not. Nothing about Article III requires this result.
I'm not sure this last bit is much of a gotcha. Candidates who want standing will gladly pay their staffers, even a penny.
Roberts concludes:
Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns. Their interest extends to the integrity of the election—and the democratic process by which they earn or lose the support of the people they seek to represent.
Roberts gets the better of his exchange with Barrett. Justice Jackson agrees with the majority's rejection of Barrett's pocketbook claim. Jackson writes: "In an ironic twist, the majority correctly rejects JUSTICE BARRETT's pocketbook-injury theory analysis due to its speculative nature." But Jackson claims the majority's rule is just a speculative: "But rather than follow that observation where it leads, the majority crafts a new candidate-only standing rule, ignoring the patently speculative nature of Bost's harm based on Bost's more generalized 'interest in a fair process.'"
What, then, is the difference between the majority and the concurrence? In what cases would there be standing under the Chief's rule, but not under Barrett's rule? Barrett rejects a "bespoke" rule, but her rule merely hangs a pocketbook from the Chief's spoke. There is not much of a gap between the Chief's opinion and Barrett's concurrence.
Justice Jackson's dissent
There is a huge irony in Justice Jackson's dissent. She is so worried how the majority's rule might affect democracy that she fails to acknowledge the problems of her own rule. If Jackson is right, standing doctrine would channel these cases to post-election litigation, with razor-tight margins. Invariably, the Court would be charged with selecting the winner. Chief Justice Roberts cites Justice Scalia's admonition from Bush v. Gore:
The democratic consequences can be even more dire if courts intervene only after votes have been counted. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires." Bush v. Gore, 531 U. S. 1046, 1047 (2000) (Scalia, J., concurring in grant of stay).
At some point, there was a taboo against citing Bush v. Gore. In 2013, I noted that Justice Thomas became the first justice to do so. That taboo is long gone.
Why did Justice Kagan join Justice Barrett? During oral argument, Kagan did not ask about pocketbook injuries. She focused instead on competitive disadvantage. I do know that Justice Jackson cited Justice Marshall's dissent in Los Angeles v. Lyons (1983), an opinion that Kagan, the former Marshall clerk certainly knew about. Jackson also took a shot at Justice Kavanaugh's opinion in Noem v. Vasquez Perdomo. To put icing on the cake, Jackson cited Kagan's late colleague, Dick Fallon:
8Contemporary commentators predicted that our decision in Lyonswould close the door to "a broad range of analogous lawsuits" aimed at systemic misconduct and abuse on the part of law enforcement. R. Fallon, Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N. Y. U. L. Rev. 1, 71–72 (1984). That prediction proved accurate. Today, courts routinely rely on Lyons to deny plaintiffs standing to seek injunctions against future police behavior. See, e.g., J. W. ex rel. Tammy Williams v. Birmingham Bd. of Educ., 904 F. 3d 1248, 1267 (CA11 2018) (per curiam); Shain v. Ellison, 356 F. 3d 211, 216 (CA2 2004); Whitfield v. Ridgeland, 876 F. Supp. 2d 779, 787– 788 (SD Miss. 2012); see also Noem v. Vasquez Perdomo, 606 U. S. ___, ___ (2025) (KAVANAUGH, J., concurring) (slip op., at 4) (concluding that, under Lyons, Latino plaintiffs who were "stopped for immigration questioning allegedly without reasonable suspicion of unlawful presence" lacked standing to seek an injunction).
This must have been a tough join for Justice Kagan.
Conclusion
In October, Paul Clement argued Bost v. Illinois State Board of Elections. At the time, I described the proceedings as The Art of the Appeal. This case seemed less about legal argumentation, and more about trying to negotiate a standing rule that garnered the most votes. If the argument was The Art of the Appeal, the ultimate outcome was The Art of the Compromise. The bottom-line vote was 7-2, but none of the three opinions definitively made their case.
Ultimately, I expect the Court in Watson to rule on the merits that the late-arriving ballots are valid, so all of this may be for naught. And maybe that's why the Court didn't really care about the jurisdictional analysis, and just made up a bespoke standing rule.
