This series of posts by Prof. Richard Re (Virginia) is based on his draft article, “Does the Discourse on 303 Creative Portend a Standing Realignment,” which is forthcoming in the Notre Dame Law Review Reflection.
In my first few posts, I’ve argued that the legal and factual criticisms leveled against 303 Creative v. Elenis are basically misplaced, or at least greatly overblown. That conclusion raises an important question: why did procedural criticism regarding the case take off? In my paper, I suggest four potential answers.
First, procedure matters. Jurisdiction isn’t just something that you study in Civil Procedure or Federal Courts. True, the “she worries” meme may have been especially popular among the fairly large number of lawyers at large in American society. But general media attention and other evidence suggests that at least some significant number of lay people also understand that courts have limited authority to rule. And those people can become incensed when they believe that that authority is being abused. The discourse on 303 Creative thus shows that the judiciary’s descriptive legitimacy is, to some significant degree, tethered to its observance of jurisdictional principles.
Second, soundbites matter. The idea that the Supreme Court decided a “fake case” or “made up case” has a kind of popular resonance that sophisticated legal ideas don’t, especially when coupled with a larger discourse suggesting shady happenings at the Court. Further, the unfounded “she worries” meme probably couldn’t have happened without real-time, bite-sized mass communication. Commentators and audiences alike were ready to believe and repeat that the justices were simply ignoring obvious legal principles, based on true but misleading snippets of information. The fact that these extreme criticisms can’t survive scrutiny didn’t undermine their transmissibility. For instance, the “she worries” meme garnered quick uptake in a district court order—thereby proving that at least some chambers are attentively listening.
Third, popular views matter. The merits of the Court’s end-of-term rulings were fairly popular, or at least not-that-unpopular, making procedural complications a relatively effective basis to indict the justices. For instance, race-based affirmative action and student debt-relief certainly have their supporters, but polls suggest that they are also nationally unpopular, or close to it. Whether the merits ruling in 303 Creative was unpopular is unclear at present. That uncertainty stems partly from abiding animus toward LGBTQ persons, but it also partly stems from significant support on the left for strong rights of free expression, including rights against compelled speech. Potential procedural problems may thus have been a relatively alarming feature of the Court’s recent behavior.
Fourth, and most interestingly, power matters. In this essay, I have focused on the law as it currently stands. But the law of standing, like all law, is frequently (and appropriately) in motion. Almost a century ago, restrictions on justiciability were associated with the left. Why? Because the Supreme Court was conservative. Later, the Court became liberal—and conservatives took up the task of championing jurisdictional limits. Is the worm turning again? Are we seeing the start of a standing realignment, in which the left becomes markedly more hawkish on standing and some related doctrines?
This last possibility will be the subject of my next and final post.