I am someone who has always wanted to believe in the courts. I believed that the federal courts, the Supreme Court of the United States foremost among them, had the ability to protect the rights of the people, especially those on the margins, from political incursions.Over the past four years, I have become increasingly disillusioned with the Supreme Court. There are many reasons for this — political machinations surrounding appointments, a disregard for precedent, the lack of an enforceable code of ethics for justices — but I find the court’s recent approach to standing doctrine the most egregious.
Standing refers to a party’s authority to bring suit in court. To sue in federal courts, according to the 1992 case Lujan v. Defenders of Wildlife, plaintiffs must have suffered harm that was caused by the defendant’s conduct and that the court can set right. This concept is important because federal courts can only hear actual cases and controversies. They cannot just issue advice.
Also, crucially, disliking a government policy is not enough harm to rise to the level of standing.
So then why is the Supreme Court hearing so many cases this term where plaintiffs arguably have no standing to sue?
First, on Dec. 5, 2022, the court heard oral arguments in 303 Creative LLC v. Elenis. The case deals with Colorado’s Anti-Discrimination Act, which prohibits businesses from discriminating on the basis of sexual orientation, among other traits.
Lorie Smith, a graphic designer who owns 303 Creative, wanted to design wedding websites. If she expanded her business to wedding websites, she wanted to refuse to design websites for same-sex weddings. But when she sued, she was not designing wedding websites. The Colorado Anti-Discrimination Act had not been enforced against her. There was no actual case or controversy.
More recently, the court heard arguments in two cases related to President Biden’s student loan relief. One of the cases involved included Missouri. Missouri sued because it said its loan authority, Mohela, was injured by the plan.
However, Mohela is an independent financial entity. As Justice Ketanji Brown-Jackson noted, “The state is not liable for anything that happens to Mohela.” This means that Missouri has no standing. In fact, the states’ case was rejected at the district court level for that very reason, but it ended up at the Supreme Court after appeals.
The other case, which involves individual plaintiffs, also has standing issues. Myra Brown wanted debt relief but was ineligible. Alexander Taylor was only eligible for $10,000 forgiveness rather than his desired amount of $20,000. According to precedent, these claims constitute “general grievances,” which does not rise to the level of standing.
I hope that the court will find that the plaintiffs in these cases lack standing, but I’m not optimistic. Given the past rulings of the conservative supermajority on the court, I think it is unlikely that there will be five justices who agree to dismiss the case on standing grounds.
While I fully acknowledge that I tend to agree more with the liberal justices than with the conservatives, the court’s lack of concern with standing doctrine is relevant to people across the political spectrum. The court’s composition may change, and if it continues to interpret standing doctrine so loosely, the court could become an unelected second executive with a veto over most government policies — essentially, a second president.
Presidents, representatives, and senators are at least somewhat beholden to the public via the ballot box. Federal judges are not.
Standing doctrine may sound trivial, but it is an important limitation on the court’s power. It prevents people from affecting binding policy change through an unelected body by suing when they dislike a government policy.
There are undoubtedly government policies that are unconstitutional. There are undoubtedly government policies that are harmful. But if people have to manufacture harm in order to bring a case before the Supreme Court, it begs the question of whether the policies at issue in the cases are the ones deserving of attention.
There are enough people with real cases and controversies to bring. The Supreme Court should pay attention to those. And we should pay attention to the Supreme Court.