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Opinion | Our Lonely Chief Justice

The decision has practical implications. It will help people pursue cause-related litigation in cases where actual money damages are minimal to all but nonexistent. It also may make it somewhat more difficult for a defendant to avoid an adverse judgment by giving the plaintiffs what they want, although as Justice Kavanaugh suggested in a concurring opinion, and the chief justice agreed in his dissent, a defendant in that position could end the case by handing the plaintiff whatever paltry sum was at stake.

Warning that the decision would lead to “a major expansion of the judicial role,” the chief justice wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.”

Beyond those practical implications, what makes the decision notable is what it says about conservatives’ current view of courts. The question of standing is an important aspect of the larger question of who gets access to the courts, and until recent years, conservative judges took a narrow view of standing. That was consistent with their constrained view of the role of the federal courts. A wide-open courthouse door was seen as an invitation to judicial activism.

Once part of the conservative DNA, that attitude began to change as “judicial activism,” once an epithet, morphed into “judicial engagement,” now a laudable goal in conservative circles. After all, the courts are increasingly friendly. Why avoid them? Why not use them?

I don’t think it’s a coincidence that this case involved not just speech, but religious speech. The case was brought to the court by Alliance Defending Freedom, a Christian-right litigating organization best known for representing bakers and other vendors who refuse to do business with same-sex couples celebrating their marriages. Given the reflexive deference that the current Supreme Court majority pays to any claim that comes dressed in religious garb, it’s easy to see the appeal of this case as a vehicle for keeping open the courthouse doors.

And it’s not hard to see why the court’s liberals, Justices Breyer, Kagan, and Sotomayor, went along for the ride. Religion is not at the top of their agenda, but retaining the ability of people to vindicate all kinds of rights through access to courts certainly is. Still, their acquiescence to this decision presents a puzzle. 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.

This brings me back to the chief justice. His opinion was pure John Roberts: pithy, smart, with deep historical analysis leavened by a touch of sarcasm. “The court sees no problem with turning judges into advice columnists” was his description of what will happen with courts no longer limited to deciding live controversies. No law clerk wrote that sentence. The view of standing that Chief Justice Roberts expressed in this opinion has always been his view of standing. It was the view he expressed in one of his earliest opinions, DaimlerChrysler v. Cuno, within months of taking his seat on the court. It was the view he took in one of his most important dissenting opinions, in the 2007 case Massachusetts v. Environmental Protection Agency.

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