This series of posts by Prof. Richard Re (Virginia) is based on his draft article, "Does the Discourse on 303 Creative Portend a Standing Realignment," which is forthcoming in the Notre Dame Law Review Reflection.
This final post tackles the biggest question raised by the discourse surrounding 303 Creative v. Elenis: Is there reason to suspect that a standing realignment might already be underway? Here's the key discussion from my paper:
Begin with 303 Creative itself, which could easily be cited as evidence against the idea that legal culture is undergoing a standing realignment. Again, left-of-center jurists on both the court of appeals and the Supreme Court either supported standing or else left it unchallenged. Yet the discourse surrounding the case suggests that other trend-setters on the legal left are eager to push jurisdictional arguments in cases and contexts where liberal justices, so far, are not.
Moreover, other cases evidence a standing realignment. In the student loan case, for instance, Justice Kagan's dissent for the three liberal justices (herself included) emphasized standing as well as the merits. The key question was whether a particular loan service entity created by a state should count as part of the state specifically for standing purposes. Ascertaining the exact boundaries of state governments is an infamously murky undertaking, sometimes yielding different answers under different doctrines. Yet Kagan's dissent hit hard on this issue. So perhaps the left-leaning justices are ready to cry foul whenever standing is a close or open question under existing case law, and many left commentators are now ready to do so even when it isn't.
Other recent cases, too, have featured left justices enforcing standing restrictions, even when some conservative justices haven't. This pattern has become increasingly noticeable since Justice Kennedy retired in 2018, generating a clear conservative majority on the Court. Besides the student loan case, take United States v. Texas, which ruled for the Biden Administration on standing, yielding a solo dissent by Justice Alito. Or California v. Texas, where only Justices Alito and Gorsuch would have found standing. Related areas of justiciability are also at play. Take New York State Rifle and Pistol Association v. City of New York, where six justices rejected a Second Amendment claim as moot, with Justices Alito, Thomas, and Gorsuch dissenting. Additional examples of bipartisan standing denials include the failed efforts to challenge President Biden's victory in the 2020 election. These cases can be viewed as liberal wins, even without liberal rulings on the merits. All in all, standing (and some related doctrines) have emerged as a vital way for left justices to snatch victories from the jaws of a conservative Court….
