US Supreme Court is making it harder to sue - even for conservatives

[July 19, 2024]  By Andrew Chung

(Reuters) - Over its past two terms, the U.S. Supreme Court has put an end to five high-profile and politically sensitive cases emerging from one particular federal appeals court on the same basis, declaring that the litigation should not have been allowed in the first place.

In all five cases - involving abortion rights, online free speech, federal student loans, immigration and Native American child welfare - the justices overturned rulings by the staunchly conservative New Orleans-based 5th U.S. Circuit Court of Appeals or judges within that circuit.

In doing so, the Supreme Court sent a message to the 5th Circuit, which handles appeals from federal courts in the Republican-led states of Texas, Louisiana and Mississippi, and the entire U.S. judiciary to tighten up on legal standing, a basic requirement all plaintiffs must satisfy to sustain their cases.

The doctrine of legal standing can be a powerful gate-keeping tool for the judiciary, requiring plaintiffs to show they have been or will be injured in some non-speculative, concrete way that is traceable to the defendant and can be remedied by the court.

The actions by the justices in this area could reduce the tide of bold lawsuits involving contentious political matters, now often mounted in the three states covered by the 5th Circuit because of its reputation for conservatism, according to legal experts.

"I don't think there is much question that the Supreme Court has attempted to rebuke the 5th Circuit in an across-the-board way that will make it more difficult for the aggressive judges on the circuit to grant standing in questionable cases," said constitutional law professor Stephen Griffin of Tulane University in New Orleans.

The Supreme Court's 6-3 conservative majority has continued to move American law sharply rightward, this term alone granting broad immunity to Republican former President Donald Trump on his 2020 election subversion charges and dramatically undercutting the power of U.S. regulatory agencies. And yet it appears intent on reinforcing limits on standing, including for conservative plaintiffs and Republican-led states.

The recent 5th Circuit cases "have kind of a conservative valence where we certainly might expect the justices to have some sympathy for the underlying substantive claims," said law professor Jonathan Adler of Case Western Reserve University in Cleveland. "And yet they nonetheless stick to their guns on standing."

The 5th Circuit has gained prominence as a favored venue for conservative litigants thanks to its far-reaching rulings against Democratic President Joe Biden's administration. But the Supreme Court has now rejected 5th Circuit decisions allowing lawsuits against a wide array of Biden administration or longstanding federal policies.

In June 2023, the justices ruled that Texas and Louisiana lacked the standing to contest Biden's shift in immigration enforcement priorities, that two individual borrowers did not have standing to oppose Biden's plan to cancel student loan debt, and that Texas and other plaintiffs did not have standing to challenge a federal law involving adoption or foster care placements of Native American children.

Last month, the justices ruled that anti-abortion groups and doctors did not have standing to try to restrict access to the abortion pill, called mifepristone, and that Republican-led Missouri and other plaintiffs did not have standing in a suit claiming federal officials were coercing tech companies to censor social media users, in particular conservatives.

A general view of the U.S. Supreme Court building in Washington, U.S., June 1, 2024. REUTERS/Will Dunham/File Photo

In another major case in 2021, the Supreme Court rejected a bid by Texas and other plaintiffs to invalidate the Affordable Care Act, also known as Obamacare, finding that they had no standing despite the 5th Circuit's conclusion otherwise.

'SEEING SOME CHANGE'

University of Texas at Austin law professor Tara Leigh Grove noted that in the past it was liberal litigants such as environmental groups that tested the boundaries on standing.

"There used to be this assumption that progressives wanted the courts to do a whole lot, and conservatives wanted judicial restraint. And I think we're seeing some change in that," Grove added.

The Supreme Court is also signaling that it is rethinking its previous permissiveness in letting states sue, legal experts said, which could rein in a now-common practice of state attorneys general from one party constantly suing over the policies of a president from the opposing party.

Adler said that standing doctrine "prevents courts from becoming where we hash out all our policy differences, because ... a lot of the cases it keeps out are cases where litigants are trying to resolve policy disputes in court."

Two of the five recent rulings reversing the 5th Circuit on standing - mifepristone and student debt - were unanimous, though the justices were sometimes sharply divided on standing. The social media ruling was authored by conservative Justice Amy Coney Barrett, who indicated frustration with the 5th Circuit and the trial judge. Conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented from the decision.

The Supreme Court ultimately blocked Biden's debt forgiveness plan in a separate case last year brought by six conservative-leaning states. Liberal Justice Elena Kagan wrote in dissent that the states simply disliked the policy and that the court, in granting the plaintiffs standing, had exceeded its judicial role.

"The court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies," Kagan wrote.

Some Supreme Court rulings in the past that denied legal standing of plaintiffs drew criticism from liberals for potentially dissuading individuals, especially racial minorities and the poor, from even attempting to vindicate their rights.

That makes the recent rulings concerning 5th Circuit cases stand out all the more.

"These are important developments because the 5th Circuit has repeatedly used manufactured cases filed by plaintiffs who have not been legally injured to attempt to move the law in drastically conservative directions," said David Gans, an attorney at the Constitutional Accountability Center liberal legal group.

(Reporting by Andrew Chung in New York; Editing by Will Dunham)

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