Standing, Out of Nothing

This is Part 3 of a series examining the Supreme Court in light of its recent, radical rulings. Today’s topic is “standing”—the principle where the Court is only supposed to take on cases where there has been a real injury or harm to a party.

A key curb upon the Supreme Court’s power is “standing.” That is to say, the Court is only supposed to hear cases where at least one of the parties has a basis to “stand” before it and plead its case. The root of this limitation lies directly in the Constitution within Article III, which says the judiciary can only decide an actual “case or controversy.”

Here's a clear way to think about this: The Court isn’t supposed to entertain hypothetical cases or issue advisory opinions. Someone really has to have been injured, or the Court has no power to hear the case. That principle has kept the Court from acting like an unelected legislature by effectively passing laws of its own.

Traditionally, standing has had the effect of limiting activism by liberal groups looking to undo a law or corporate action they don’t like. The requirement of a direct causal link between the person filing suit in court and the defendant has proven a high bar for “impact litigation” cases. That's because the plaintiff has to show a concrete injury caused by the defendant, whether it’s the government or a big corporation.

So if I don’t like the law you passed, I have to show that I was actually harmed by it in some real way, and that can weed out a lot of activist cases. I can’t just be mad at it; it has to have affected me directly.

At the end of the most recent term of this Court, however, the activism was coming from the far-right, and it felt as though the Court was changing the standing rules to permit cases to go forward. That is super frustrating to progressives, who are used to getting the raw end of the standing stick. Hypothetical harm to red states and conservative Christian plaintiffs seem to stick where they would likely not were the tables turned.

This further raises legitimacy concerns over the current make-up and activism of the Court itself as it opens the gate for more kinds of imagined harms. Let’s take a look at two cases this term where questions about standing took on significance and the Court seemed to defy, or at least make odd exceptions to, the normal rules for coming before it.

Student loan debt relief

When President Biden announced he would be forgiving up to $20,000 of student loan debt for borrowers who made less than $125,000, Republicans set out to block it. Biden was acting under authority of the HEROES act which had authorized the Secretary of Education to “waive or modify” any debt in the the event of a national emergency, such as Covid. 

It was pretty clear from the get-go that the Court would side with the six Republican states that had sued to stop the debt forgiveness. But first it had to get around a thorny threshold question: What injury could the states actually show?

After all, if student borrowers in their jurisdictions had their loans partially forgiven, that would free up money for those borrowers, which in turn would probably result in greater tax receipts for those states. The real loser would be the federal government and federal agencies that had to write down the debt.

Nevertheless, Missouri argued that it was being injured because the president’s plan would reduce profits at the Missouri Higher Education Loan Authority, or MOHELA, which it claimed was an arm of the state. But there was a big problem with this argument, too: MOHELA had never actually filed suit. 

As an independent agency, MOHELA had decided not to sue, perhaps because it realized its profits would likely rise after some student loan services left the space and MOHELA could pick up the extra accounts. For example, borrowers previously with FedLoan would be transferred to MOHELA.

“I was surprised the court found Missouri had standing,” said higher education expert Mark Kantrowitz to CNBC. “The debts of MOHELA are not the debts of the state. And MOHELA is able to sue on its own, so why didn’t it bring its own lawsuit?”

Chief Justice John Roberts utterly ignored this question and found standing anyway. “Under the Secretary’s plan, roughly half of all federal borrowers would have their loans completely discharged,” Roberts wrote. “MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees...The plan’s harm to MOHELA is also a harm to Missouri.” Roberts ruled that MOHELA is “an instrumentality of Missouri,” because it was created and is governed by state officials.

Justice Elena Kagan, joined by the Court’s two other liberal justices, wrote a stinging dissent, tearing into the majority opinion on the question of standing. “Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him,” she wrote. “Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy.” Kagan believes the case is one that the Court “has no business deciding” and that the majority “blows through a constitutional guardrail intended to keep courts acting like courts.”

Kagan said the Court “is supposed to stick to its business — to decide only cases and controversies,” and should stay away from policy judgments. Failure to do so risks the Court posing “a danger to a democratic order.”

In the next part of this series, I’ll explore the way in which the Court then assumed and used an extraordinary power called the “major questions doctrine” to strike down the debt forgiveness plan.

Same-sex wedding web site design 

The question of the power of the Court to hear hypothetical or ginned-up cases came to a head when The New Republic reported that the Petitioner in the 303 Creative v. Elenis case, who had challenged Colorado anti-discrimination laws, had submitted a record containing a fake request by a non-existent customer. It turns out, the web designer—a woman named Lorie Smith who had been assisted in her case by the far-right Christian legal activist group Alliance Defending Freedom—had filed bogus evidence of a request for services for the creation of a same-sex marriage website.

The person who had supposedly made the request, a man named “Stewart” who wanted a website for his wedding to “Mike,” was surprised to find himself listed at all. Stewart himself was a web designer, was already married to a woman, and had children. The so-called “request” was a sham.

And there was another issue with the case around standing. Smith had never actually designed any websites; her interest in doing so was prospective only. She claimed she was “worried” that Colorado’s anti-discrimination laws would compel her to create a same-sex wedding site against her religious views, which saw such marriages as false. Nothing like this had actually happened yet though. She hadn't made a single site or taken on a single website client, let alone a fake gay one named Stewart. But she claimed the prospective prohibition on her speech was sufficient to grant standing in her case.

I’ve looked carefully at these questions, and I want to be precise here, because conservatives on the right claim, with some legitimacy, that even though there was a bogus submission, it was irrelevant to the case. They argue that Smith’s prospective injury of “compelled speech” grants her standing under traditional First Amendment caselaw. So forgive me as I get a little in-the-weeds here.

The conservatives are likely correct on this technical point. The fact that the website request was bogus isn’t determinative of Smith’s standing to sue. That’s because that part of the record wasn’t attached to Smith’s First Amendment claim, and it wasn’t part of the “stipulated facts” considered by the Supreme Court. Even without the made-up client, Smith’s basic claim would have been intact, namely, that she was facing prospective harm from a limitation upon her speech. The bogus request, bad as it it is, doesn’t really matter within this broader claim.

The Tenth Circuit had looked at standing in particularly and, after a lengthy analysis, found Smith could sue on a theory of prospective injury to her free speech. But it found against Smith anyway on other grounds, so when Smith appealed, her standing wasn’t raised as a direct issue before the Supreme Court. Only the part of her case that she had lost wound up mattering.

Whether Smith and her lawyer—who by no small coincidence is Missouri Sen. Josh Hawley’s wife Erin Hawley—ought to be sanctioned for submitting a false record is another question. And the fact that Smith felt the need to manufacture the fake request in the first place shows how important it is for courts to keep a close eye on whether there are actual cases or controversies.

So unfortunately, as shady as the submission of the bogus request into the record was, it probably doesn’t change the outcome on standing. That’s because the Court decided this case was, at its most basic level, about free speech. And it is common for people to sue for an injunction if their free speech was “prospectively” violated because they are already being “harmed” from the speech limitation.

So were the conservatives right? Was there really no problem with standing here?

Not so fast.

The inquiry shouldn’t have ended there, because there’s a troubling cart-before-the-horse problem happening here.

If this was truly just a case about compelled speech, the Tenth Circuit and the majority are probably correct that someone like Smith had standing to sue based on prospective harm. But as Justice Sotomayor noted in her dissent, the entire question here was whether Colorado was preventing Smith from exercising speech, or whether it was preventing her from committing discriminatory acts against certain traditionally oppressed groups. 

This is another way of asking whether standing was proper in the first place. The Court’s majority opinion allows plaintiffs to get around the normal injury requirement for standing by cloaking their discriminatory acts under the cover of “free speech.” Standing, as a normal requirement in a discrimination case, has now gone out the window, so long as there is any kind of free speech question.

And that has terrible, slippery slope consequences. Take the example Justice Ketanji Brown Jackson raised during oral argument. Let’s say there was a photo business that wanted to create family Christmas scenes from the 1950s, but it really didn’t want any Black families to be in the pictures because that wouldn’t fit the “creative” theme it was going for. 

Under the majority’s ruling, the photo business could challenge an ordinance prohibiting racial discrimination, even if it had not yet been asked by any Black families to provide the service, on the ground that the business had a First Amendment right to “create” any kind of “traditional” scene it wanted.

That right to “creative speech” not only swallows the law entirely, it allows hypothetical cases to proceed in violation of traditional notions of standing.

It’s very hard to see the difference between Justice Jackson’s example and what happened in this case. That’s why it feels like an important guardrail has been removed once again, but this time without the Court ever having even considered the question of standing in depth. From now on, if the Court decides that a law is a prospective violation of creative free speech, rather than a prohibition upon a discriminatory act, then any non-discrimination law that stands in the way of that could fall. The added danger here is that the Court provided absolutely no guidance in how to determine whether a case is actually about free speech or actually about discrimination in the provision of services.

There’s another important consideration that gets lost when standing goes out the window. In this case, all we heard about was poor Lorie Smith and how she was “worried” about creating same-sex websites. There was no real same-sex couple on the other side of this story, explaining how being turned down because of who they are and whom they love is devastating, stigmatizing and illegal. The requirement that there be a real case and real injury ensures that we don’t get these kinds of one-sided stories. But that’s exactly what happened in the 303 Creative case.

So far in this series, I’ve discussed the loss of the important guardrails of precedent and standing. In the final part, I’ll discuss how judicial restraint generally has swung to extremist Court activism now that the safeguards are so loosened. And importantly, I’ll discuss what we as a democratic society should do about a Supreme Court that has gone rogue.