Supreme Court Decides Cases Where No Colorable Showing of Standing to Sue

The Black Robed Justices Are Just Pundits When 'They Decide Cases Without A Plaintiff Having a Colorable Claim of Standing to Sue

The Supreme Court has a primary jurisdictional limitation stated in the Constitution. It can only decide “cases” or “controversies.” See Article III, Section 2. It has no authority to issue advisory opinions unrelated to an actual case or controversy.

Over the years the Supreme Court has defined when it and the lower federal courts can exercise judicial power over a case or controversy which requires that there be a plaintiff with standing to sue, meaning that there is a case or controversy where the plaintiff claims an “injury in fact” by actions or inactions of the defendant. If the plaintiff cannot demonstrate the existence of some injury in fact, it will generally be found to lack standing to sue the defendant, and usually the case is dismissed.

If the plaintiff cannot demonstrate a colorable claim of injury in fact, the dispute is deemed not of a type over which a federal court has jurisdiction to decide. If plaintiff is not able to show standing, the Court has no Constitutional jurisdiction or authority to exercise the judicial power of the United States.

But in two cases at the end of the Court’s Term, the Super Majority of Reactionaries decided cases where there was no colorable demonstration of standing to sue, but the Court went ahead to rule on the merits despite the absence of this Constitutional prerequisite of standing to sue.

The most egregious of the two was 303 Creative LLC v. Elenis where a web site designer sued Colorado because she was thinking of expanding her business to design websites for couples about to get married. She thought about doing this business expansion in 2016, but as of the date of Supreme Court decision in 2023 she had not taken any action to actually begin to offer wedding websites. Instead she had a disabling worry that if she started to offer these wedding websites, Colorado would insist that she offer those services to a couple having a gay wedding, that is, one in which the couple are both of the same sex. Ms. Smith, the owner of 303 Creative, pointed to the Colorado Anti-Discrimination Act (CADA), which applied broadly to any public accommodation offering services to the general public. She said she feared Colorado would cite her under CADA unless she would offer wedding websites to sane sex couples, and she claimed such forced action would violate her religious beliefs and interfere with her First Amendment rights not to utter speech through website design with which she disagreed.

Now what has happened in this case since Ms. Smith had this business expansion idea: nothing. She has not started to offer wedding websites to the general public. Colorado has not filed any enforcement action against her. Colorado has not told her what CADA would require if she started producing wedding websites. She sought an injunction against Colorado prohibiting it from ordering her to design same sex wedding websites, but the district court denied the injunction, and that was affirmed by the Tenth Circuit Court of Appeals. On this record, she filed a petition for a Writ of Certiorari, which was granted by the votes of at least four members of the Court.

All that has happened between 2016 and 2023 was litigation, but none of the parties took any step to begin offering wedding websites or to enforce CADA against the potential future action. But Ms. Smith sued Colorado because she had, according to Justice Gorsuch, a reasonable fear that if she started offering wedding websites, Colorado would order her to develop wedding websites for same sex couples. So she sought relief from the Court from her fear.

So, what was Ms. Smith’s injury in fact? Apparently, her only injury was her fear of what Colorado would do even though Colorado had done nothing but defend litigation. Justice Gorsuch said she had a reasonable fear based on Colorado’s actions in other cases.

On top of that, through investigation by The New Republic and the Guardian, contact was made with a Mr. Stewart who was said in court filings to have contacted Ms, Smith to obtain a gay wedding website, but through the journalists investigation, Mr. Stewart denied that he ever contacted Ms. Smith about designing a gay wedding website, and he noted that he had been happily married to a woman for fifteen years. The attorneys for Ms. Smith apparently never checked the facts they asserted in pleadings, and as Professor Tribe said, they should be cited for disciplinary action for submitting false allegations. Unfortunately, the Colorado Attorney General never checked the allegations either. The case was brought to the Supreme Court with erroneous if not fraudulent claims.

On this extraordinarily thin record, the Court proceeded to the merits without ever discussing whether Ms. Smith had standing to sue. Gorsuch was too eager to get to the merits that he was not going to be restrained by a decision on standing; he ignored the necessary issue, and the rest of the Right Wing Supermajority followed along.

Not being burdened by standing, the Court barreled ahead holding that Ms. Smith’s First Amendment rights would be violated if Colorado ordered her to design wedding websites for same sex couples. Gay couples could be denied services offered by Ms. Smith to heterosexual couples based on Ms. Smith’s First Amendment rights.

I conclude that on the record, Ms. Smith did not have standing to sue Colorado as her case was based on her fears rather than any concrete action by Colorado. Further, without plaintiff having standing as she could not point to any actual injury in fact, the Court has not shown it had Constitutional jurisdiction to decide the case. Rather than being a decision of the Supreme Court exercising its judicial function, Gorsuch’s opinion is really nothing more than punditry without legal effect and without judicial enforceability. It is an opinion, and not a legislative opinion as the Court has no legislative powers. It has no more weight than my Substack newsletter.

The second case has a little more standing substance, but it too is sitting on a very thin standing reed and is bordering on punditry rather than an exercise of judicial power.

Department of Education v. Brown was an action by two student loan borrowers who objected to procedural steps in the adoption of the modification of certain student loans, including forgiveness of some loan balances. The Court held unanimously that these two individual borrowers did not have standing to challenge the Secretary’s modification of some student loans.

In doing so, the Court stated the Constitutional basis for standing as imposing limits on the Court’s jurisdiction to real Cases and Controversies. Justice Alito, writing the Opinion, stated on behalf of a unanimous Court:

“We have ‘an obligation to assure ourselves’ of litigants’ standing under Article III” before proceeding to the merits of a case. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 340 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180 (2000)). And because we conclude that Brown and Taylor lack standing, “[t]his case begins and ends with standing.” Carney v. Adams, 592 U. S. ___, ___ (2020) (slip op., at 4). In particular, we hold that Brown and Taylor fail to establish that any injury they suffer from not having their loans forgiven is fairly traceable to the Plan.

The Court then gave a straight forward recitation of the standing rules limiting the Court’s jurisdiction:

Our authority under the Constitution is limited to resolving “Cases” or “Controversies.” Art. III, §2. “The doctrine of standing,” among others, “implements this” limit on our jurisdiction. Cite as: 600 U. S. ____ (2023) 7 Opinion of the Court authority. Carney, 592 U. S., at ___ (slip op., at 4). Our jurisprudence has “established that the irreducible constitutional minimum of standing contains three elements” that a plaintiff must plead and—ultimately—prove. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). “First, the plaintiff must have suffered an ‘injury in fact’” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Ibid. (some internal quotation marks omitted). Second, the plaintiff ’s injury must be “fairly traceable to the challenged action of the defendant,” meaning that “there must be a causal connection between the injury and the conduct complained of.” Ibid. (internal quotation marks and alterations omitted). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.” Id., at 561

Applying these Constitutional standing rules, the Court dismissed the individual borrower’s challenge to the Plan.

The Court then turned to a challenge to the student loan Plan by six states that disagreed with it as a policy matter and for ideological reasons. Biden v. Nebraska. Applying the standing rules, the Court held that none of the six states on their own could show any harm to the states if some borrowers had their student loans forgiven.

But Missouri advanced the idea that an agency-corporation created by the State did have standing based upon a reduction in loan servicing fees when many student loans were forgiven. Missouri created the Missouri Higher Education Loan Authority (MOHELA) as an independent corporation, but its officers and Board were appointed by the State. MOHELA did not issue any loans, rather it entered a contract with the Department of Education to service student loans issued by or guaranteed by the Government. Missouri formed MOHELA as a separate corporation so that any losses it experienced would not affect the State budget. Claiming that the student loan Plan would reduce servicing fees paid to MOHELA, Missouri claimed that economic loss gave standing to Missouri to challenge the Plan, even though MOHELA was an independent corporation and any losses or surpluses would not affect the State budget.

Interestingly, MOHELA refused to participate in the litigation, and it even required Missouri to pursue formal discovery to obtain MOHELA’s financial information,.so Missouri argued that despite MOHELA’s reluctance to join the litigation, any losses of its servicing fees would somehow adversely affect the State. Actually, the projection of a loss of $44 million in servicing fees may have been erroneous since some student loan borrowers still in school might obtain new student loans to pay on-going expenses, and MOHELA could receive servicing fees based on these new loans. So the assertion that MOHELA would suffer a loss could be incorrect. Chief Justice Roberts, writing for the Far Right SuperMajority, said there was a colorable case that MOHELA would suffer a loss, and that Missouri, itself, would be negatively affected by the projected loss of servicing revenue.

Despite the uncertainties in the claimed loss to MOHELA and Missouri, the SuperMajority charged in and held the Plan was beyond the President’s executive authority, and that the loan modifications, eliminating half of student loans, went beyond any authority granted by Congress for loan modification, using its new right-wing tool: the Major Question Doctrine.

Justices Kagan, Sotomayor and Jackson dissented in an opinion written by Kagan. Contrary to the Right Wing SuperMajority, she emphasized that states set up independent corporations precisely to prevent any losses suffered by such entities from having any effect on the State budget or finances. So, how could Missouri have “derivative” standing through any revenue loss by MOHELA, an independent corporation structured by Missouri to prevent any MOHELA losses from affecting the state budget.

But the Right Wing Superrmajority was eager to get to the merits of the case, so they could hold that the President exceeded his executive authority in adopting the Plan, and, for good measure, Roberts held under the Major Question Doctrine that Congress had not set out clear guidelines or standards on what types of loan modifications could be adopted, so there was an improper and insufficient delegation of legislative power to the Executive.

As Justice Kagan stated, the Right Wing Supermajority was eager to legislate instead of staying within the bounds of Constitutional judicial review. She criticized the Majority for acting as superlegislators even though they had no legislative authority under the Constitution.

So here we have three cases with widely different application of Constitutional standing rules. The 303 Creative is the most egregious as standing was based on speculation of what would happen if Ms. Smith started, after 7 years, to produce wedding websites, and somehow she through exercise of First Amendment rights could avoid having to serve gay couples desiring her services. Her attorneys failed to check out basic facts, and they alleged she was contacted by a gay man who desired a wedding website even though the alleged caller denied ever calling Smith, said he was happily married to a woman for 15 years and he was a web designer himself and didn’t need Ms. Smith’s services. But by taking an incredibly wide and permissive view on standing, the Supermajority could strike a blow for Christian Nationalism.

The challenge by two individual borrowers to the student loan Plan was unanimously rejected on standing grounds, but when six States challenged the Plan, the Court went out of its way to find there was derivative standing through MOHELA, a Missouri created, independent corporation, which was projected to suffer servicing fee losses, but if borrowers took out new loans to pay on-going expense MOHELA might not suffer any servicing fee losses. But the Chief Justice utilized this attenuated standing to undo what the Legislature and Executive tried to do by forgiving part of student loan debt.

The Supreme Court needs to get back to its judicial lane and not stray outside of its Constitutional boundaries.

Now the facts of 303 Creative are so extraordinary that a solid case can be made that the Supreme Court ventured beyond the judicial role and that Attorney General Garland could issue an opinion that the plaintiff did not have standing, so the Supermajorities’ opinion is not really a Constitutional decision and is not actually a judicial act having enforceability but is rather punditry by the Six and not an exercise of judicial power.