exist Murthy v. Missouri“We begin with a stand and we end with a stand,” Judge Barrett wrote. She meant it! Her majority opinion ran nearly 30 pages and focused on completely While standing. I don’t think I’ve ever read anything like it. No plaintiff can stand against a defendant. Judge Barrett harshly criticized every conceivable long-term argument and explained why it wouldn’t work. This reminds me of the scene in The Matrix Reloaded where Neo single-handedly destroys Agent Smith. Just when you think there are more arguments in the 26,000-page record, Barrett demolishes them. And in the end, she just flew away without touching any merit. Judge Barrett is on a mission! However, I think the analogy fails because dissidents take the red pill.
Here is the test proposed by Barrett:
Putting these claims together, plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the conduct of at least one government defendant. On this record, it was a tall order.
This is a difficult task! The standards she set were so complex that it was impossible for anyone to meet them. Maybe that’s the point. Judge Barrett, more than anyone else on the Supreme Court, serves as a gatekeeper. She was very stingy with the certificate grant. She rejected all emergency petitions in shadow cases (unless they came from the 5th Circuit). She no longer believed in the certainty that preceded judgment. She forces attorneys to establish their positions with a degree of certainty I have never seen. Critics often charge that the Roberts Court is closing the courthouse doors. Justice Barrett is the embodiment of this theme.
Perhaps Barrett will defend herself by saying she was simply applying long-standing precedent regarding jurisdiction. If she is right, then my criticism above falls flat. How can you blame a judge who faithfully adheres to established doctrine? But Judge Barrett often tightens the rules of standing by imposing new, extremely strict rules to satisfy Article III requirements—or at least that’s how I see it.
I will begin by laying out the claims in Justice Alito’s dissent and then provide Justice Barrett’s rebuttal.
First, what are the standards for traceability? The Fifth Circuit relied in part on Department of Commerce v. State of New York (2019). In this case, New York is able to challenge adding a citizenship question because it anticipates fewer people will fill out the census and New York could lose a congressional seat as a result. (As it turns out, New York still lost a seat in Congress.) Justice Alito held that the standing in this case arose naturally from Ministry of Commerce:
Hines does not need to prove that she was scrutinized solely because of the officers’ actions. Rather, as we argued in U.S. Department of Commerce v. New York, 588 US 752 (2019), she was sufficient to demonstrate that a foreseeable effect of the officer’s conduct was that Facebook would modify its censorship policies in a manner that affected its censorship policies. . Id., page 768. . . . That’s not a harsh standard, and Hines has achieved the necessary performance — with room to spare.
However, the court did not find that Hines’ injuries could be traced to any conduct by a specific defendant. Justice Alito charged the court with adopting a “new, higher standard.” Under the majority’s standard, Alito wrote, “New York would also have difficulty determining which noncitizen households failed to respond to the census because of a citizenship question and which had other reasons.” Alito described the majority’s strict standard as “A series of ironclad connections”:
What the court seemed to want was an ironclad series of connections — from specific mandated communications to specific changes in Facebook rules or practices and then to specific adverse actions against Hines. No such chain was required in the MOFCOM case, and it should not be required here.
Judge Barrett responded to this charge in footnote 8:
By acknowledging that Facebook did have the potential to independently act to suppress Hines’ content, we are not applying a “new, higher standard” as the dissenters claim. . . . Our analysis is also inconsistent with Department of Commerce v. New York, 588 US 752 (2019).
How to distinguish these precedents? The district court clearly stated in the census case that “the citizenship question resulted in lower response rates for non-citizens.” But in Murthythe district court did not find that “clear link The relationship between the White House’s request for content moderation from Facebook and Facebook’s actions against Hines. In my opinion, this is indeed the case. Ministry of Commercein which case she might not vote to run.
Next, let’s consider correctability. Judge Alito wrote that Hines “easily meets this requirement.” Alito found the test undemanding. That’s enough to suggest that “Haines’ past harm was a ‘foreseeable effect’ of government censorship activity.” Note how Alito treats government as a single entity rather than individual officials–a bureaucratic miasma. The cornerstone of Barrett’s argument requires Hines to trace each injury to a specific defendant, who can then prospectively correct the injury. However, the court found that the remedialability aspect was not satisfied. Justice Alito countered that “as with retroactivity, the court applied a new, higher standard of remediation that never required plaintiffs to ‘be certain’ that the court order would prevent future harm.”
Judge Barrett echoed this fact in footnote 11:
FN 11 – As with traceability, the dissent asserts that we are applying a “new, higher standard of remediation,” which is false. Post, page 22. . . . Facebook may continue to remove Hines’ posts (thus satisfying traceability) under the policy required by the White House. But if White House officials have already given up on their pressure campaign, banning them is unlikely to prompt Facebook to stop enforcing the policy (and thus make it impossible to correct it).
A big part of the remedialability analysis is that the coronavirus pandemic is over and the Biden administration no longer needs to harp on the subject. So even if compensability could be met in 2022 or 2023, the game would be over in 2024. Eventually, every policy reaches its end, and bans may no longer make sense.
Third, there are other arguments that Hines did not raise but that Judge Alito found persuasive.
Rather, this objection relates to connections that Hynes himself did not make, often based on harm that Hynes never claimed. . . . However, Hines has never made so many claims, and the onus is on the plaintiffs to establish their position by presenting “concrete facts.” Lujan v. Defenders of Wildlife, 504 US 555, 561 (1992) (internal quotation marks omitted). Holding the plaintiffs accountable is especially important in a case like this one, where the record runs to more than 26,000 pages and the lower court failed to make any specific findings of causation. As the Seventh Circuit put it, “[j]Ugis are not like pigs, looking for buried truffles [in the record].” Gross v. Cicero, 619 F. 3d 697, 702 (2010) (internal quotation marks omitted).
The reference to the Seventh Circuit opinion is odd. As far as I know, the “Truffle” series originated from United States v. Dunkel, the 1991 decision of the Posner-Easterbrook Group based on the standards. It reads more like Easterbrook’s perspective than Posner’s, but I could be wrong. Yet Barrett cited Gross v. Town of Ciceroa 2010 judgment by Judge Tinder, which in turn cited dark. Why cite derivatives instead of the original text? (For what it’s worth, Judge Barrett filled Judge Tinder’s seat.)
But anyway, it’s neither dark or Total It’s about jurisdiction. I think Justice Alito is right that courts have an independent obligation to establish their own jurisdiction. In my view, a party’s failure to establish a specific jurisdictional connection does not amount to a waiver. I do not think that finding an alternative basis of jurisdiction would violate the party representation rule. Barrett certainly doesn’t recommend immunity. Instead, she goes for colorful Easter Brookism. Alito wrote:
The court dismissed this evidence because Hines did not draw the same link in her brief. See supra note, n. 20. 7. But we have an “independent duty” to assess status, Summers v. Earth Island Institute, 555 US 488, 499 (2009), and an “almost unending duty” to exercise our jurisdiction where status exists, Colorado River Water Conservation Dist. v. United States, 424 US 800, 817 (1976). “[A] In a case like this, the record spans more than 26,000 pages,” and the plaintiffs have presented a wealth of facts that deserve careful scrutiny before we just sit back and watch. Ante, p. 20, No. 7.
In her heart of hearts, Barrett once again blamed the attorney for not living up to the burden she had set herself.
I’ve said this before and I’ll say it again. Judge Barrett spent little time in private practice. While in academia, she worked on zero litigation. Her time on the Court of Appeal was short. She simply lacks the experience as a lawyer seeking quick relief in complex cases where time is of the essence. When she claims that experienced litigants fail to meet a burden that is not expressly imposed in case law, introspection reveals that the burden does not really exist. I feel like Judge Barrett grades abstracts the same way she would grade seminar papers, or worse, provides feedback in a faculty seminar. She had extremely high expectations based on her subjective sense of which cases did and did not belong in federal court.
Now, the upshot of the Barrett case is that it could keep blue states away from Republican administrations. If tonight’s debate is any indication, we may be seeing these lawsuits sooner rather than later. At this point, perhaps Chief Justice Roberts should change his vote to maintain Chevron? It will come in handy in January.