74. "What If No One Has Standing?"

Justice Alito's concern during the mifepristone argument that courts might not be able to hear challenges to every unlawful federal government action rings more than a little hollow

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

This week’s “Long Read” was spurred by a line of questioning from Justice Alito at last Tuesday’s oral argument in the mifepristone case. But first, the news:

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On the Docket

It was a pretty quiet week from the Court—with no decisions in argued cases and no full Court rulings respecting emergency applications. Last Monday’s regular Order List didn’t make a lot of headlines, either; there were no grants of certiorari and no separate writings respecting denials.

The lack of a decision yet in the South Carolina racial gerrymandering case, argued back in October, helped to generate one headline—with the three-judge district court in South Carolina formally agreeing to keep its injunction (requiring South Carolina to re-draw its congressional district map) on pause through the 2024 election cycle. If, as oral argument suggested is likely, the Court ends up reversing in that case, the result would have been the same. But the fact that the Court let the relevant clock expire without saying anything, even after South Carolina asked it to move faster (an application the Court will now likely deny as moot), is another example of how the Court can sometimes produce significant real-world effects by doing … nothing.

Speaking of the Court not doing anything, Idaho’s emergency application seeking to put its ban on gender-affirming medical care for transgender adolescents back into effect has been pending for so long that it now seems likely the Court is waiting for something else to happen before resolving it. My best guess for the delay is that the justices have accepted that they’re going to have to decide this question sooner, rather than later, and, with several cert. petitions already just about in a position in which they could be granted, are waiting to deal with the Idaho application alongside whichever case they end up taking up on the merits.

Looking ahead to this week, we expect a regular Order List at 9:30 ET this morning, but nothing else is scheduled; the Court is done with the March argument session, and has not publicly announced that opinions in argued cases are expected any day this week. Finally, in addition to the two pending applications noted above and late-breaking developments, we could hear from the Court this week on the following three pending emergency applications:

1. Alvarado v. Austin: Military chaplains claiming retaliation for seeking religious accommodations from COVID vaccine mandate;

2. Trevino v. Palmer: Challenge to remedial state legislative district map imposed by district court after finding violation of Voting Rights Act; and

3. Srour v. City of New York: Request to put district court injunction against New York rifle/shotgun licensing law back into effect after Second Circuit issued stay.

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The One First “Long Read”: For Every Right, Must There Be a Remedy?

It seems likely, given how the oral argument in the mifepristone case went on Tuesday, that a majority of the Court is going to throw out the case on the ground that the Alliance for Hippocratic Medicine does not have Article III standing. (Of course, this defect had been clear all along, but the fact that we nevertheless got this far is … what I wrote about last week.)

Unlike during the student loan argument, where he floated the very theory of standing on which the majority ultimately (and wrongly) coalesced, Justice Alito (who turns 74 today) took a different tack on Tuesday. Effectively conceding that the plaintiffs don’t have standing, he asked a series of questions of Solicitor General Elizabeth Prelogar that circled around the same basic premise: Mustn’t someone have standing to sue the FDA in a case like this? And if not, isn’t that a problem? Here’s a representative example:

After the Solicitor General explained the government’s position (which rests on the Court’s own precedents), Alito pushed back repeatedly. Stating that “I have great respect for Article III,” Alito nevertheless seemed surprised by the possibility that there might be no one with standing, and that [t]he American people [would] have no remedy” for (hypothetically) unlawful action by the FDA.

In the abstract, there’s lots to commend the idea that government misconduct should always have some kind of redress. Chief Justice Marshall himself went out of his way in Marbury v. Madison to invoke the Latin maxim, ubi jus ibi remedium (“for every right, there is a remedy”), albeit ironically in an opinion that ultimately denied William Marbury a remedy for the right it held that he had. But there are three different problems with Alito’s nod toward that principle here, two of which make the exchange look more than a little hypocritical—and a third that says a bit more about today’s Court versus its predecessors.

First, with regard to Article III standing, specifically, the Court since the early 1970s has consistently rejected arguments that a plaintiff in a particular case should have standing because “no one else” does. Of the three different criteria a plaintiff must satisfy to establish Article III standing (injury in fact; causation; and redressability), none turn on what would be true of this plaintiff didn’t have standing. More fundamentally, as the Court put it in 1972 (paraphrasing Alexis de Tocqueville), “judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury” (emphasis mine).

Of course, the Court is allowed to change its mind. But this mindset has been invoked over and over again in the Court’s opinions—including a 2013 case in which a 5-4 Court rejected the standing of a group of plaintiffs who brought a constitutional challenge to allegedly unlawful secret governmental surveillance of their communications under 2007 and 2008 amendments to the Foreign Intelligence Surveillance Act. As the Court explained in that case, Clapper v. Amnesty International, “[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.”

Who wrote that passage? Justice Alito.¹

Second, stepping back from standing, there are an array of other doctrines through which the Supreme Court has made it much harder for courts to provide remedies for unlawful (or even unconstitutional) conduct by the federal government. Lots of unlawful government conduct is insulated from judicial review by “sovereign immunity,” as I’ve explained before. Still more is insulated from judicial review by “qualified immunity,” a doctrine fashioned by the justices to insulate most government officers from damages liability unless their conduct violated “clearly established” rights of which a reasonable officer would have been aware. And even when federal government officers flagrantly violate the constitutional rights of citizens, the Supreme Court in recent years has made it almost impossible for plaintiffs to sue those officers for damages, even when there is no other remedy for the officer’s misconduct. One case in point is the Court’s 2020 decision (in a case I argued) refusing to recognize a so-called Bivens claim against a Border Patrol agent for his allegedly unprovoked shooting of an unarmed 15-year-old Mexican national—in a context in which there was no other possible remedy. Who wrote the opinion for the 5-4 Court in that case? Justice Alito.

Third, hypocrisy aside, the abstract idea that all unlawful government conduct should be judicially redressable would portend a radical reworking of the relationship between the three branches—where, every single move the government makes would be subject to judicial scrutiny, whether or not that move caused any harm to anyone. Even as a matter of first principles, this approach would effectively give the courts veto power over all legislative and executive action, with ominous consequences for the courts’ legitimacy. As Justice Kennedy wrote for the majority in a 2011 case, “[f]ew exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them.”

For a similar take from a 2007 plurality opinion, here, again, is Justice Alito:

“[T]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” and must “‘refrai[n] from passing upon the constitutionality of an act ... unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’”

I am no fan of many of the precedents that have made it so difficult for plaintiffs whose rights have been violated by federal officers to seek redress in the federal courts. And I would welcome efforts, whether from the Court or Congress, to make it easier. But turning decades of Article III standing doctrine on its head to challenge administrative action on statutory grounds is the very last place where I would start. And I have a sneaking suspicion that, were the ideological valence of this dispute different, it’s not where Justice Alito would start, either.

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SCOTUS Trivia: April Showers Bring … Stability

Sometimes, this part of the newsletter provides interesting—or, at least, amusing—trivia. This week’s installment is really just … trivia. I was curious about the frequency of justices leaving the Court, whether voluntarily or otherwise, by month—especially whether April might be the least frequent month of departure given both the Court’s post-Civil War calendar (in which April has almost always been during the term) and quirks of the pre-Civil War calendar (in which April was seldom either right after the end or right before the beginning of the Court’s sessions).

It turns out that it is! (Okay, the exclamation point is a bit much.) Of the 112 “departures” from seats on the Court (including elevations from associate justice to chief justice), the month with the fewest is April—with only four (Justice Baldwin, in 1844; Justices McLean and Campbell, in 1861; and Chief Justice Stone, in 1946). Next up are August and November, tied with six each. The busiest months, perhaps unsurprisingly, are July and September, both of which have seen 15 departures over the Court’s history. But right behind them is January(!) with 14.

The more you know…

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1. The majority opinion in Clapper does endeavor to identify other ways in which the challenges to government surveillance brought in that case could be litigated. But each of the examples Justice Alito flagged have run into problems of their own, so that, 11 years hence, there still hasn’t been a conclusive constitutional review of the surveillance authorities that the plaintiffs in Clapper sought to challenge. More fundamentally, at some point, either the Court means what it says or it doesn’t. That’s a big part of why I don’t share the less cynical take of UVa Professor Richard Re, who has argued before that, despite contrary rhetoric in so many of its opinions, the Court has gravitated toward “relative” standing.

Nor do I think the mifepristone case reflects Re’s argument that we’re seeing a “realignment” on standing, with conservatives embracing a general relaxation of the doctrine and liberals choosing to embrace its rigidity. Leaving aside that rigidity is now what stare decisis requires, the same judges who embraced standing in the mifepristone case and others are still enforcing it rigidly against progressive plaintiffs. That’s not “realignment”; it’s just selective adherence.