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The Lack of Standing in Murthy v. Missouri

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As Eugene writes below, today’s decision in Murthy v. Missouri does not tell us much about the very important First Amendment questions argued to the Court. But it does tell us some useful things about standing doctrine and the role of the Supreme Court.

The Court (in an opinion by Justice Barrett) reversed the Fifth Circuit, and refused to reach the merits, on the grounds that the plaintiffs had not adequately shown that their rights were implicated by the resolution of the case—i.e., because they had not shown “standing” to sue and thus the Court was not confronted with a “case” or “controversy” as the Constitution requires.

While Justice Barrett’s opinion is long, it has two important overarching points:

First, standing has to be shown with precision and particularity, not with a general cloud of allegations that something important is going on. As the majority puts it, the Fifth Circuit erred by “approach[ing] standing at a high level of generality” and “erred by treating the defendants, plaintiffs, and platforms each as a unified whole.” But:

Our decisions make clear that “standing is not dispensed in gross.” TransUnion LLC v. Ramirez, 594 U. S. 413, 431 (2021). That is, “plaintiffs must demonstrate standing for each claim that they press” against each defendant, “and for each form of relief that they seek.” Ibid. Here, for every defendant, there must be at least one plaintiff with standing to seek an injunction. This requires a certain threshold showing: namely, that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic.

Heeding these conditions is critically important in a sprawling suit like this one. The plaintiffs faced speech restrictions on different platforms, about different topics, at different times. Different groups of defendants communicated with different platforms, about different topics, at different times. And even where the plaintiff, platform, time, content, and defendant line up, the links must be evaluated in light of the platform’s independent incentives to moderate content.

This reminder was probably especially relevant to this case, because at argument it seemed that many Justices have a somewhat nuanced, fact-specific view of when the First Amendment is violated by the communications and threats of government officials to third-parties. They were being asked to make important new precedent in the area where it was somewhat hard to find agreement on exactly what had happened to who and what the courts might realistically do about it.

This reminder is also broadly important for the now-familiar genre of public law case where a group of states or other large litigants challenge an executive branch action in broad terms and request universal equitable relief against that action across the nation. It can be tempting in such cases to assume from the importance of the issue and the scale of the plaintiffs and the relief sought that the Court should resolve it, but the Court is reminding us that that is not how it works. Nobody on the Court dissents from this point.

Second, even once the Court does focus in on the plaintiff, platform, time, content, and defendant where there is the strongest claim of standing—Jill Hines’s claim against the CDC and the White House about their effect on her Facebook posts—the Court found that there was still not enough evidence to connect the dots. It’s hard to tell whether Hines’s Facebook posts were removed because of potentially illegal pressure from government officials, or from Facebook’s own (perhaps dubious) content moderation policies. (This is “traceability,” in standing lingo.)

And the Court found it even harder to believe that if the federal courts order the CDC and the White House, going forward, to stop encouraging Facebook to remove these posts, that Facebook is suddenly going to reverse course in its content moderation policies. The ship has sailed. Under the law of standing, if you want to get an injunction against a government official it is not enough to show that they have violated your constitutional rights in the past. You have to show that they are likely to keep doing it in the future, if but only if injunctive relief is not granted. (This is “redressability,” in standing lingo.)

Justice Alito, joined by Justices Thomas and Gorsuch, dissented on these points, believing that they could more confidently connect the dots between the injury and relief to Hines. But because of the issue with scattershot standing noted above, it also appears that the best case for Hines’s standing was not made with as much care and factual detail in the briefs as it was by Justice Alito’s dissent. This led to a memorable line from the majority that: “It is especially important to hold the plaintiffs to their burden in a case like this one, where the record spans over 26,000 pages and the lower courts did not make any specific causation findings. As the Seventh Circuit has memorably put it, “[j]udges are not like pigs, hunting for truffles buried [in the record].” Gross v. Cicero, 619 F. 3d 697, 702 (2010) (internal quotation marks omitted).” The truffle-hunting pigs quote is an appellate law staple, and now it has a nice Supreme Court citation.

Overall, the majority’s standing analysis seems right to me, and I agree with Jonathan’s post below that this is a reaffirmation of settled principles rather than breaking new ground. It also seems important when placed in broader context. Until last year, it had become increasingly common for groups of plaintiffs, sometimes including states, to bring broad challenges to government policies seeking interim relief and force a lot of big questions of public law on to the federal docket. In the past two years, the Court seems to be implementing something of a standing reset, or crackdown—denying standing here, as well as to the group of doctors challenging others’ use of mifepristone, and also last year to the states challenging the Biden administration’s immigration enforcement policies, to some of the challengers of the constitutionality of the Indian Child Welfare Act, and to one of the sets of challengers to the student debt relief plan.

All of these cases featured standing doctrine being applied even though the plaintiffs were bringing claims that we would code as ideologically conservative, suggesting that standing doctrine is importantly not just a tool of conservative ideology. And (perhaps coincidentally?) all of these cases reversed the Fifth Circuit’s findings of standing to sue.

Last year, co-blogger Sam and I wrote (in Proper Parties, Proper Relief) that:

The legal system has been approaching a point of exhaustion and futility, like a high school theater play on the last night of the performance, when everyone knows the lines but is so tired of saying them. As soon as a presidential administration does something that matters, it will be sued immediately by a coalition of states whose attorneys general are of the opposite political party; the plaintiff States will wrap themselves up in “special solicitude” and point to downstream costs they may suffer from the federal policy, which is easy to do because every important federal policy will lead to costs somewhere; and the States will seek a preliminary injunction shutting down the federal policy everywhere. And then, because they sue in a friendly district court and circuit court, and because the preliminary injunction analysis is in essence little more than a judicial prediction of the merits, they will almost certainly get the injunction they seek. And so we have arrived, for the first time in our national history, at a state of affairs where almost every major presidential act is immediately frozen by a federal district court.

This new but now familiar routine puts enormous pressure on our democratic system and on the Supreme Court. Instead of a presumption of legitimacy for action by the political branches, almost every important action they take will be judicially blocked. The Supreme Court is forced to act more quickly, without the percolation advantage of having several circuit courts consider the question. And the political branches may even be tempted to authorize major policies as a sheer political gambit, knowing that the courts will quickly enjoin their enforcement, allowing proponents of a policy to score political points against the judiciary without having to accept any of the policy’s costs or consequences. This is bad law and bad democracy. It cannot go on forever.

Optimistically hoping that the Supreme Court was on the verge of a “course correction,” we then wrote that “Perhaps the most recent Term proves the truth of Stein’s Law: ‘If
something cannot go on forever, it will stop.’” Murthy seems like another good sign for those of us who wanted to see that dynamic stop.

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