Last night (or was it early this morning?), I commented on Justice Sotomayor's remarks that litigants in Supreme Court cases live in "infamy." I wrote that she is only half-right. Litigants who promote liberal causes are celebrated. Litigants who promote conservative causes are excoriated. I discussed Abgail Fisher at some length, and could add some more names. Coach Kennedy. Jack Phillips of Masterpiece Cakeshop. The Little Sisters of the Poor. The Green Family, owner of Hobby Lobby. Kaj Ahlburg and Mary Brown (the plaintiffs in what became NFIB v. Sebelius.) Dick Heller. Alan Bakke. All of the plaintiffs that contested COVID regulations. (Trust me, I know how hard it was to find Jewish plaintiffs who were willing to challenge Governor Cuomo's lockdown measures.) And so on. If we want to go even further back, we could include poor Joseph Lochner. The immigrant baker's name has become associated with the worst way of deciding cases.
King v. Burwell also comes to mind, and it relates further to Hecox. In King, plaintiffs challenged an Obama Administration policy that provided Affordable Care Act subsidies in states that did not establish health insurance exchanges. The standing argument was a bit complex, and required plaintiffs to be in a particular low income band, but not too low that they would qualify from an exemption from the individual mandate penalty. There were four named plaintiffs. The Wall Street Journal hounded the plaintiffs to determine if in fact they met the criteria for standing. I recount this history in my second book, Unraveled:
The question of standing came to the forefront in February 2015 following a series of investigative reports published in The Wall Street Journal by Louise Radnofsky, Brent Kendall, and Jess Bravin. The articles raised doubts whether each of the four plaintiffs were indeed injured by the IRS rule. The lawyers at Jones Day told me that they had researched each of the questions raised in 2013 when the case was filed, and vigorously dismissed the allegations.
