We got some bad news today: the Supreme Court gave an atrocious ruling on Murthy v. Missouri, ruling that the plaintiffs lacked standing to sue and overturning the lower court’s ruling in favor of the plaintiffs.
In case you’re not familiar with the case, it deals with collusion between the Federal government and social media companies to take down conservative content that the Biden Administration did not like. The district court, and then the Fifth Circuit Court of Appeals, both found wrongdoing under the First Amendment. It’s a well-established principle that not only do Constitutional protections of rights bind the government, but also that government can not do an end run around these rights by employing a private third party as their agent, even if such Constitutional restrictions would not otherwise apply to the private party in question. (cf. West v. Atkins, NRA v. Vullo) This is precisely what was happening here, and it should have been an open-and-shut case, right? But instead, it got thrown out on a bizarre technicality: Standing.
What is Standing, and what’s wrong with it?
Standing is an important and necessary legal doctrine, to prevent frivolous, abusive lawsuits by barring a plaintiff from filing suit if they lack any reasonable connection to the problem they’re suing over. This makes a whole lot of sense, in principle. In practice… at the current moment, it’s a severe mess in dire need of reform.
Remember a couple years ago, when the Biden Administration pulled the student loan “forgiveness” stunt for the first time, and everyone who looked at it for two seconds said “this is flagrantly illegal”? But our side had a heck of a time doing anything about it, because the Biden Administration had carefully crafted it such that, it seemed, there would be no one who could pass the tests set by various precedents and end up with standing to sue. Then-Missouri-Attorney-General Eric Schmitt explains here how they got lucky and basically found a loophole in the standing rules that allowed them to get the case before a judge, where the judicial process was able to make short work of it, because it was flagrantly illegal.
But wouldn’t you think, in a sane world, that something so flagrantly illegal wouldn’t have been so difficult to get before a judge in the first place?
You’ve probably heard the claim, endlessly trumpeted by certain corners of the media for the better part of four years now, the Trump campaign brought dozens of election-irregularity cases in the wake of the 2020 election and lost all of them. But that’s not true; it’s wrong on two different levels actually. According to John Eastman, who was involved in a lot of this, of the cases that managed to get heard, the Trump campaign actually won three-fourths of them, but it was too little too late, because the vast majority of them got thrown out on technicalities, mostly over issues of standing.
And now we have the Supreme Court throwing out Murthy v. Missouri over issues of standing, rather than on anything resembling the merits of the case itself. Justice Alito points out the problem with this in his dissent:
What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in [National Rifle Association v.] Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.
What Justice Alito didn’t say, but I will, is that this isn’t a problem with Murthy v. Missouri; it’s a problem with the process employed here. To put it simply, when the doctrine of Standing makes it possible for a bad actor to do things that are recognized to be “blatantly unconstitutional” but, by doing so “with enough sophistication” that they can get away with it because no one can be found with the right to sue in the first place, there is something wrong with the doctrine of Standing itself.
It doesn’t need to be — and should not be — done away with, but it absolutely does need to be reformed, to deal with the gaping holes in the rule of law that it’s allowed to spring up over the past few years.
What should be done about it?
Honestly, I’m not sure exactly how to loosen the rules without inviting torrents of abusive lawsuits. My gut feeling goes something like this, but I’m not married to the idea, and if anyone has some better suggestions, I’d love to hear them:
Rather than applying the Standing rules equally to all cases, establish a “sliding scale of severity” standard, such that the bigger and more widespread the harm alleged, the lower the bar for standing is set. On a case involving dumping the burden of hundreds of billions of dollars of student loans on the backs of every single taxpayer in the nation, or censoring politically inconvenient scientific information about a disease that killed millions of people, that should end up as a pretty low bar indeed.
The obvious problem with this standard is the way it would invite nuisance suits by environmental activists. After all, isn’t climate change going to devastate the entire world in the next 20 years? (Just as it has been going to do for 60 years now?)
For this, maybe a second test is needed in addition to the severity one: urgency. Something that is observed to be currently causing, or right about to imminently cause, real immediate harm, rather than predicted to do so at some vague future point, gets the Standing bar lowered.
I’m not so arrogant as to think I’m the first or only person to notice this problem, but I haven’t seen anyone else talking about it yet, which means it’s still not particularly prominent in the public consciousness. It is a real problem, though, so please share this article around, especially if you have any connections to people in policy spaces, so we can get some decision-makers noodling on the problem.