Standing and Situational Constitutionalism

Linda Greenhouse has this column at The New York Times this week, aptly observing the significance of Chief Justice John Roberts’ solitary dissent in Uzuegbunam v. Preczewski—but also illustrating exactly the kind of situational constitutionalism he sought to avoid.

The case was brought by a plaintiff who was prohibited by Georgia Gwinnett College, a public institution, from sharing his religious views outside, then even inside, a designated free speech area. Once challenged, the college changed the policy, rendering the dispute moot. But the plaintiffs sought a dollar of damages, raising the question of whether they retained standing to sue even after getting what they wanted.

Justice Thomas wrote for the Court that even a nominal amount of damages could perpetuate standing. Roberts, alone in dissent, argued that this effectively meant judges could issue advisory opinions in the absence of a concrete dispute, which he called “a radical expansion of the judicial power.”

There is a reasonable debate to be had about whether any amount of damages is enough to overcome barriers to standing. As Justice Brett Kavanaugh noted in a concurrence, a defendant could still moot a case by paying the dollar. But the underlying purpose of standing—which is to confine courts to actual controversies and prevent them from becoming free-range censors of legislation—remains an essential means of confining the power of the courts.

Greenhouse agrees with that—but not, apparently, because of the constitutional principle involved. Chiding the liberal justices for aligning with conservatives in reinstating standing in the case, Greenhouse notes that they wanted to keep the courts generally open for rights-based claims. But, she adds, “The Trump administration appointed more than 230 judges to the federal courts. I’m afraid the liberal justices may be living in a time warp if they retain the view they doubtless absorbed in law school that courts are inevitably a rights-seeker’s friend.”

The suggestion seems to be that principles about standing should shift based on the likely outcome of rights claims, given the composition of the judiciary at a particular time. Yet that, too, untethers judges from the standards that should confine them and renders them agents of raw power, exactly the accusation she levels against conservative advocates of “judicial engagement.” 

Moreover, it is unclear what category “a rights-seeker’s friend” describes. Rights invariably conflict with each other. And Greenhouse can hardly be called “a rights-seeker’s friend” if the rights being asserted are religious. A consistent defense of rights across the board would still have to come to grips with what should be the limited constitutional role of the courts, but it would have the virtue of consistency. Even if one accepts the premise that Trump’s judges—who, it should be noted, rejected his claims of electoral fraud—systematically abuse their power, someone, somewhere, sometime has to break the cycle of repaying abuse with abuse.

Greenhouse’s defense of rights—which cannot identify a consistent principle for when the courts should intervene in disputes or how wide-ranging their authority should be—is situational. Roberts’ opposition to casual standing is consistent. He has the better end of the contrast. Constitutionalism depends on the consistent application of principle independent of whether it produces results we prefer.

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