Why Does (It At Lest Appear That) Justice Barrett Applies “New,” “Heightened,” and “Elevated” Standing Rules?
In Murthy v. Missouri, Justice Barrett wrote, “We begin—and end—with standing.” And she meant it! Her majority opinion stretches nearly 30 pages, and it focuses entirely on standing. I don’t think I’ve ever read anything quite like it. Not a single plaintiff has standing against a single defendant. Justice Barrett takes a sledgehammer to every single conceivable standing argument, and explains why it won’t work. It reminded me of the scene from the Matrix Reloaded where Neo single-handedly destroys every single Agent Smith. Just when you think there are more arguments from the 26,000 page record, Barrett demolishes them. And at the end, she just flies away without touching the merits. Justice Barrett was on a mission! Though, I think the analogy fails, because the dissenters took the red pill.
Here is the test Barrett puts forward:
Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.
It is a tall order! The standards she erects are so byzantine, it is unlikely that anyone could ever satisfy them. And maybe that’s the point. Justice Barrett, more than anyone else on the Court, is serving as the gatekeeper. She is extremely stingy on cert grants. She turns away all emergency petitions on the shadow docket (unless they’re from the Fifth Circuit). She no longer believes in cert before judgment. And she forces lawyers to establish standing to a degree of certitude I’ve never seen before. Critics often charge that the Roberts Court is slamming shut the courthouse doors. Justice Barrett is the embodiment of that theme.
Perhaps Barrett would defend herself by saying she is simply applying longstanding precedent concerning jurisdiction. If she were right, then my criticisms above would falter. How can you blame a Justice for faithfully adhering to settled doctrine? But Justice Barrett routinely heightens the rules for standing by imposing new exceedingly exacting rules to satisfy Article III–or at least that is how I see things.
I’ll start with claims in Justice Alito’s dissent, and then provide Justice Barrett’s rejoinder.
First, what is the standard for traceability? The Fifth Circuit relied, in part, on Department of Commerce v. New York (2019). In that case, New York was able to challenge the addition of the citizenship question because it anticipated that fewer people would fill out the census, and thus New York might lose a seat in Congress. (As things turned out, New York still lost a seat in Congress.) Justice Alito argues that standing in this case flows naturally from Department of Commerce:
Hines did not need to prove that it was only because of those officials’ conduct that she was censored. Rather, as we held in Department of Commerce v. New York, 588 U. S. 752 (2019), it was enough for her to show that one pred
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