Following the March 26 Supreme Court arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine—a challenge by anti-choice physicians to FDA decisions that eased access to mifepristone, a drug used for medically induced abortions—commentators on the left and right appear to agree on the likeliest outcome: the FDA will prevail. The agency will likely win, though not because of the merits of the FDA’s decision-making. They will prevail because federal courts had no constitutional authority to hear this dispute at all.
The relevant limits on judicial power follow what the Court calls “standing” doctrine—a set of rules that determine who is entitled (and thus has “standing”) to bring a lawsuit in federal court. That doctrine is well known among lawyers and legal academics for what Eric Segall, the Georgia State University law professor, has aptly identified as its “incoherence and malleability”—no matter what side you are on, there are authoritative Supreme Court decisions favoring your chosen outcome. Judging by the March 26 argument, Justice Samuel Alito may be poised to claim a lifetime achievement award for contributing to the mess.
Article III of the Constitution establishes a federal judiciary empowered to decide disputes that the text variously calls “cases” and “controversies.” The threshold premise of standing doctrine is that not every legal debate is a “case” or “controversy” in the constitutional sense. A friend and I may wager $20 over a beer whether Donald Trump violated the Emoluments Clauses of the Constitution through his financial interest in a Washington, D.C. hotel frequented at premium rates by foreign lobbyists. Our disagreement does not mean, however, that I can sue my friend or even Trump to decide the bet. Our debate is not a contest “historically viewed as capable of judicial resolution.”
Instead, over the last 60 years, the Supreme Court has crystallized a set of three requirements that must be present before a federal court may consider a dispute as a case or controversy. First, a plaintiff must be able to allege an injury—what the court calls “injury-in-fact”—that they have suffered or will suffer. Second, that injury must be “fairly traceable” to conduct by the defendant who is the suit’s target. Third, it must be reasonably likely that the relief the plaintiff seeks would actually redress the injury that is the basis for the suit. It would not be enough to show an injury that I was offended by Trump’s profiteering or made anxious by the thought of presidential lawlessness. My suit would be dismissed as a mere “generally available grievance about government,” presumably felt by every citizen who shares my views and thus a political contest, not a legal one.
Of the three requirements—injury, causality, and redressability—injury is the “first and foremost” element. I know this from a 2016 opinion in Spokeo v. Robins., written by Alito.
Alito’s opinion held that, for purposes of standing, it would not be enough of an injury to Robins that the Spokeo Company allegedly violated the Fair Credit Reporting Act (FCRA) by publishing false information about him. Breaking the law would not be an injury-in-fact unless it affected him “in a personal and individual way.” And the injury would have to be “concrete.” It could not be “abstract” or “hypothetical.”
Of course, Justice Alito would not insist that the harm to the plaintiff should already have occurred. A “risk of real harm” in the future could be sufficiently “concrete” to pass muster. But just how imminent must the risk be? Justice Alito had something to say about that in a 2013 decision called Clapper v. Amnesty International USA. Clapper was filed by lawyers, journalists, and human rights organizations challenging the constitutionality of amendments to the Foreign Intelligence Surveillance Act (FISA). The provisions would make it easier for the government to conduct electronic surveillance of non-U.S. persons outside the U.S. for foreign intelligence purposes. The plaintiffs alleged that surveillance under the new law would be unconstitutional under the First and Fourth Amendments.
Unsurprisingly, the dissent, not Alito’s majority opinion, gives the reader some sense of who the plaintiffs were. They included one lawyer, who, at the time Clapper was filed, represented Khalid Sheik Mohammed, the most infamous of Guantanamo detainees, and at least one other person facing post-9/11 criminal charges. Another lawyer-plaintiff represented accused enemy combatant Mohammedou Ould Salahi, a Guantanamo detainee whose brother, living in Germany, was someone she frequently consulted on her client’s behalf. The plaintiffs, in performing their jobs, regularly communicated with “experts, investigators, attorneys, family members . . . and others who are located abroad.” One of the lawyers claimed that concerning one detainee he represented, the U. S. government had already “intercepted some 10,000 telephone calls and 20,000 email communications” before the FISA amendments. The lawyers and other researcher-plaintiffs argued that to fulfill their professional obligations properly, they would have to undertake costly travel abroad because they could not otherwise communicate confidentially with important contacts outside the U.S. via electronic means.
Speaking through Alito, however, the five-justice majority thought the plaintiffs’ allegations insufficient to support standing. To satisfy the injury requirement, a risk of future harm, Alito wrote, must be “certainly impending”—my italics. The majority thought it merely “speculative whether the Government will imminently target communications to which respondents are parties.” And even if such targeting were imminent, the Court would have to “speculate as to whether the Government will seek” to conduct surveillance under the particular section of FISA being challenged rather than under some other legal authority. Moreover, the FISA Court might deny the government’s surveillance application. (Historically, very, very few such applications are rejected.) And the surveillance might not succeed. And maybe it would not be these lawyers’ contacts, in particular, who would be targeted. And because all this shows the risk of harm is not “certainly impending,” the plaintiffs could not claim standing just because they had to undertake “costly and burdensome measures to protect the confidentiality of their communications” on behalf of their clients. One might be forgiven for thinking that, unless the National Security Agency were suddenly awash in incompetence, acquaintances of these lawyers’ clients would be high on the list of the most likely surveillance targets. But still, nothing is certain, right?
Given these precedents, all authored by Justice Alito, it is shocking that the mifepristone case was heard in the lower courts, let alone by the Supreme Court. Individual doctors and an association—the Alliance for Hippocratic Medicine—brought the suit to challenge the FDA’s original approval of mifepristone as safe and effective, but also more recent decisions that would increase access. The FDA raised the maximum gestational age at which a woman could use the drug, reduced the number of in-person office visits required for its use, and allowed non-doctors to prescribe and administer mifepristone. The theory on which the individual doctors were granted standing rests on the possibility that, while on emergency care duty at some future unspecified time, they would have to treat a woman who achieved access to mifepristone through the new FDA rules who then suffered one of the exceedingly rare medical complications associated with mifepristone use, who then came into their emergency room for treatment, and then confronted them with a crisis of conscience in having to treat that patient, and that treatment might entail assistance in an abortion. The Fifth Circuit thought standing appropriate because “even if one of the named doctors [suing] never sees another [such] patient, it’s inevitable that one of the thousands of doctors in plaintiff associations will.” As it happens, no one could identify any instance in which the precise chain of events hypothesized by the plaintiffs had ever occurred. And lest this risk seems somewhat less than “certainly impending,” it must be added that federal law also protects “health care providers who refuse on religious or moral grounds to perform or assist in the performance of certain health care services.” In other words, there was already a well-established legal avenue for a physician opposed to legal abortion from being compelled to participate in such a procedure. The risk was essentially nonexistent.
Given his previous opinions, one could reasonably conclude that Justice Alito might rule that the plaintiffs seeking to impede access to medically induced abortion lacked standing. But one would not expect such a result from his questions at oral arguments on March 26. At one point, he seemed to endorse the elaborate chain of remote probabilities offered by the Fifth Circuit. Animating Alito’s seeming retreat from a “certainly impending” standard for finding injury was a concern he flagged in his first question. Given the doubts about standing, Alito asked: “Is there anybody who could challenge in court the lawfulness of what the FDA did here?” In other words, if the Supreme Court rejected these plaintiffs on the grounds of standing, could anyone else meet the injury, causality, and redressability requirements ordinarily required to sue? Law Professor Michael Dorf has suggested, “Maybe,” but Solicitor General Prelogar’s response was blunt: “In this particular case, I think the answer is no.”
The idea that government action might evade judicial review because no one has standing to challenge it may seem troubling, but it is a common—indeed, pervasive—phenomenon. Imagine, for example, a citizen who wants to bring an Establishment Clause challenge to some government spending program that favors religion. It is hard to identify any individual uniquely harmed by such expenditures. The most obvious harm is to taxpayers, although tracing a particular expenditure to any one person’s tax dollars is impossible. Because taxpayer injury cannot be tied to specific individuals, the ordinary rule is that taxpayers lack the standing to challenge government spending to which they simply object.
Implicitly recognizing this problem for the Establishment Clause, the Supreme Court, under then Chief Justice Earl Warren, tried to offer a way out. A 1968 decision, Flast v. Cohen, held that a taxpayer has standing to challenge spending authorized by Congress in asserted violation of “specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power.” In other words, the Court gave taxpayers standing to sue under the Establishment Clause when no one else likely could. But almost 40 years later—perhaps a Biblically significant number—taxpayers tried to raise Establishment Clause objections to President George W. Bush’s creation of a White House Office of Faith-Based and Community Initiatives and so-called Executive Department Centers for Faith-Based and Community Initiatives within a number of federal agencies. In a 5-4 decision, Hein v. Freedom from Religion Foundation, Inc., the Supreme Court, now led by Chief Justice John Roberts, who, like Alito, was appointed by the younger President Bush, denied standing. It drew a technical distinction between pro-religion spending prescribed by Congress and pro-religion spending undertaken by the executive branch using discretionary funds.
Even though Justice David Souter’s dissent in Hein correctly saw the challenge as involving a critical injury to the “right of conscience,” a plurality insisted, quoting from precedent, “Relaxation of standing requirements is directly related to the expansion of judicial power, and lowering the taxpayer standing bar to permit challenges of purely executive actions would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.” This warning against judicial overreach still rings true. Who wrote it? Samuel Alito.
