Jurisdiction, SCOTUS, Supreme Court

Standing: The Cure For Cert Grantor's Remorse in King v. Burwell

Just because the plaintiffs’ standing to sue in King v. Burwell shouldn’t be an issue doesn’t mean it won’t be an issue, as Tamara Tabo explains.

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A recent article in Mother Jones raised the possibility that at least one of the plaintiffs in King v. Burwell, the challenge to the Affordable Care Act heard by the U.S. Supreme Court this week, would not be hurt by Obamacare. The report even claimed that two plaintiffs might be substantially helped by it. To have standing to sue, the plaintiffs must be capable of showing that they suffered, or imminently will suffer, an injury-in-fact because of the contested provision of the ACA.

There are many reasons why standing should not be an issue in this case. Just because the plaintiffs’ standing to sue in King v. Burwell shouldn’t be an issue doesn’t mean it won’t be an issue, however.

First, let’s look at whether the issue needs to be addressed and how it could be addressed. Then, I’ll let you know why none of the good reasons in the first two sections may be enough to deter a divided Court from digging in its heels on the standing doctrine, if it chooses.

“Well, You’re Surely Not Raising a Standing Question with us Here for the First Time at Oral Argument, Are You?”

— Chief Justice Roberts

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At oral arguments on Wednesday, Justice Ruth Bader Ginsburg led the questions on standing. Solicitor General Don Verrilli told the Court that the issue turned on a factual question about the plaintiffs’ tax liability that the government couldn’t answer. He stressed that the government had not raised the issue, and he was now only doing his best to respond to Justice Ginsburg’s concern. The SG seemed pretty content to take his opponents at their word and simply move along to the merits.

Not only did the government not raise the issue of standing in the Court of Appeals, but the Supreme Court didn’t ask the parties to brief the issue for its review. Until recent media coverage, no one had talked about the issue since the district court level.

However, if the Court really does have a justiciability question, the Justices need to deal with it. The Court is not only free to bring up justiciability questions sua sponte, but they are bound to address any questions that become apparent. There’s no pussyfooting around Article III. It’s just that it’s unlikely that the Court really does have such a question on its hands that no one has caught up until now.

Well, What Are You Suggesting? Should We Have a ­Trial Here on This Issue and Find What the Facts Are?”

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— Justice Alito

Suppose that there is now a legitimate question of fact about whether any of the plaintiffs will suffer harm. What can the Court do?

Plaintiffs bear the burden of establishing standing. Typically this question is hashed out by the district court. If the lower court dismisses for lack of standing, the plaintiffs might appeal. If the court does not dismiss for lack of standing, then the government might appeal. Either way, the parties brief the question before the Court of Appeals and, likely, before the Supreme Court too. By the time SCOTUS reviews the standing question, the Justices have plenty to base their decision on, one way or another.

Not so in King. What should we make of all this?

Here, the Court would only be saying that the plaintiffs might lack standing, not that the Court is confident that the plaintiffs do lack standing. As Justice Alito asked, the proper question would be whether the district court was right when it held in the motion to dismiss context that there was standing. Presumably, the Court would remand the case to the district court for fact-finding on the question, as Justice Ginsburg suggested.

The Justices might balk at ruling that any time that they are suspicious that the facts of a case don’t support standing, even if the parties never briefed the question, even if there’s nothing apparent in the record controverting standing, the Court can remand for fact-finding. What’s to keep the Court from doing that in nearly every case? This sort of rule could get messy quickly.

Solicitor General Verrilli didn’t seem particularly inclined to take up this suggestion. Rather, he appeared willing to take his opponents’ word for it and move on to the merits.

Cert Grantor’s Remorse

The Court sometimes uses its justiciability doctrine as an instrument to dispose of cases that the Court is not keen to decide after it has already granted certiorari. Think of it like a “DIG-Lite.” King v. Burwell wouldn’t be the first time that the Court used standing to punt on a case when some members of the court wanted to avoid reaching the merits.

The Court’s history may be dappled with such cases, but 2013 offers a recent example. In Hollingsworth v. Perry, the Court avoided the question of whether California’s Proposition 8 was unconstitutional in denying same-sex couples the right to marry. Chief Justice Roberts, joined by Justices Scalia, Ginsburg, Breyer, and Kagan, decided that the petitioners lacked standing. Justice Kennedy filed a rather angry (and awesome) dissenting opinion, joined by Justices Thomas, Alito, and Sotomayor.

Hollingsworth concerned a pesky question of third-party standing in the defense of state ballot initiatives. The issue in King is substantively quite different. The cases could have an important similarity, though: a court divided on the merits, with some Justices reluctant to decide one way or the other, with a ruling on standing promising an escape hatch.

With King, most observers presume that the four reliably liberal Justices — Breyer, Ginsburg, Kagan, and Sotomayor — will vote to uphold the IRS’s interpretation of the ACA. Most observers presume that conservative stalwarts Justices Scalia, Thomas, and Alito will vote to reject the IRS’s view. Justice Anthony Kennedy is a perennial swing vote.

Chief Justice John Roberts is also a plausible swing vote in King. In 2012, he cast the critical vote to uphold Obamacare against the challenge in NFIB v. Sebelius. More importantly, a crucial piece of JGR’s emerging jurisprudence is that the Chief rarely meets a statute he can’t rehabilitate. See, for example, JGR’s majority opinion in Bond.

Just because predicting a Justice’s decision is hard doesn’t mean the Justice is having a hard time deciding. So, it’s not entirely smart to bet on who the swing vote might end up being. But if any Justice is, indeed, unsure of how to decide a case, wouldn’t he or she rather avoid deciding it? Better to avoid a question for now than to take up the question and get it wrong. Right?

Kicking a contentious case on standing grounds provides a welcome way out for ambivalent Justices. It also satisfies the Justices who want the challenged law to stand. It lets the losing Justices mitigate their damages: at least this path won’t create what these Justices view as dangerous precedent on the merits issue.

Justices should not sacrifice the Court’s standing doctrine in order to sidestep the merits question in King v. Burwell. But that doesn’t mean that they won’t.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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