Does the Discourse on 303 Creative Portend a Standing Realignment?

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Richard M. Re*

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis.  According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.”  As a doctrinal matter, these criticisms are unfounded.  But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing.  Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish.  In the past, Justices who found themselves out of power have often tried to tighten justiciability principles.  So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.

© 2023 Richard M. Re.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*For feedback and discussion, I am grateful to many commentators, including Sam Bray, Will Baude, Kristen Eichensehr, Tara Grove, Steve Sachs, Micah Schwartzman, and Fred Smith.  Special thanks to Sam Armstrong and Ryan Subel for excellent research and editorial assistance, as well as to Anne Bennett Osteen and the astute editors of this journal.  I am also grateful to thoughtful commentators on social media.