“Does the Discourse on 303 Creative Portend a Standing Realignment?”

I have a new draft paper raising the possibility that we are living through the beginning of a standing realignment, as evidenced by the discourse on 303 Creative v. Elenis. I also discuss recent standing cases such as Biden v. Nebraska, where liberal justices opposed standing and conservative ones supported it.

Here’s the intro:

303 Creative LLC v. Elenis was a major ruling on free expression and anti-discrimination law, one whose implications are both unclear and potentially troubling. Yet an enormous amount of critical discussion about the case has focused on its procedural aspects rather than its merits holding.

For jurisdictional issues like standing to consume public attention is remarkable, especially when there was so much else to talk about and criticize at the Court that week, to say nothing of the merits holding in 303 Creative itself. Something interesting is going on here.

I will try to untangle the different threads of procedural criticism regarding 303 Creative. My basic conclusion is that, under existing case law, the Court had ample authority to reach the merits in 303 Creative. Moreover, I see no clear reason why that conclusion is undermined by any post-decision factual discoveries to date, or any other objection.

In short, there is no procedural scandal here. Declining to reach the merits in 303 Creative would have changed governing precedent and legal practice much more than what the Court actually did.

The discourse surrounding 303 Creative is especially remarkable because the left has long been associated with permissive principles of federal court jurisdiction. Left critiques of 303 Creative thus suggest the possibility of a broader standing realignment, in which the legal left becomes jurisdictionally hawkish.

Standing realignments have happened before. As power at the Supreme Court has shifted right and then left, dissenters have pressed jurisdictional limits on federal court authority. Now that the Court has shifted rightward again, we may be on the cusp of another ideological reversal on federal court jurisdiction.

In that respect and others, the surprising discourse on 303 Creative may be a harbinger of cultural and legal changes yet to come.

The draft essay (99 Notre Dame L. Rev. Reflection (forthcoming 2023)) is accessible here.