Yesterday, I discussed how a colorful exposé on the lead plaintiff in King has led to a series of articles raising difficult questions about standing and the viability of the lawsuit. How on earth, you might ask, are we only learning about this now? And what, if anything, should be done about it?
The trouble arises from the fact that standing is determined at the outset of litigation, well before the judicial machinery for adjudicating facts has kicked into gear. Typically, that’s not a problem. When a plaintiff files a lawsuit, she will often submit a declaration or affidavit swearing to the facts that support her standing. (That’s what the plaintiffs in King did.) If the defendant thinks the plaintiff is wrong about the facts, that factual dispute is usually the crux of the litigation. It can be hashed out in discovery and at trial, without the need to revisit standing.
Here, however, the dispute isn’t about what happened between the parties. The dispute is about the validity of the IRS rule. There’s thus been no opportunity to dig into the facts about plaintiffs’ standing. Instead, as is common in these sorts of cases, the government accepted for purposes of the litigation the factual accuracy of the declarations that the plaintiffs submitted. (The government challenged the legal sufficiency of the declarations in the lower courts, but it dropped those arguments at the Supreme Court.)
Now that recent reporting has raised serious questions about the veracity of those declarations, it is incumbent on the plaintiffs’ lawyers to clarify to the Supreme Court the basis for their clients’ standing, perhaps with amended declarations that offer specifics about VA enrollment (for King and Hurst) and income (for Levy and Luck). Indeed, to the extent that unanticipated standing problems have arisen, the King lawyers have an ethical obligation to do so. As the Court has said, “[w]hen a development after this Court grants certiorari … could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay.”
If the plaintiffs keep mum, they’ll be putting the Supreme Court into a bind. The Court isn’t equipped to decide factual questions; it’s supposed to resolve legal disputes. At the same time, however, the Court can’t just ignore standing. Without standing, the federal courts lack jurisdiction—the power—to resolve the dispute. That’s why the courts must consider standing on their own, whether or not any party has objected.
Had the Court been apprised of concerns about plaintiffs’ standing when it agreed to take King in November, it might well have taken a pass. As the certriorari pool memo would surely have warned the Court, the case is so beset with standing problems that it’s an unattractive vehicle to resolve the legality of the IRS rule. And when standing problems become apparent after full briefing, the Court sometimes chooses to dismiss cases as improvidently granted—to “DIG” them. That’s so even when the case presents “fundamental issues of national importance.” As the Court has explained, “the importance of an issue should not distort the principles that control the exercise of our jurisdiction.”
But if the Court doesn’t want to DIG the case, what should it do? One option would be to do nothing. Although King appears to lack standing, it’s hard to say for certain whether Hurst, Levy, or Luck do. One of them might well have standing, although I’m frankly not sure which one. The Court might also think that newspaper reports are inadequate to call into question the veracity of plaintiffs’ declarations, at least where the government didn’t raise any factual objections in the lower courts. (David Ziff and Josh Blackman have each made versions of this argument.)
But there are problems with the do-nothing approach. Is the Court really untroubled by the very real possibility that the plaintiffs have used inaccurate or misleading declarations to manufacture a federal case? Or that the case may have become moot as to some of them? This isn’t your garden-variety suit; it’s precisely the sort of high-stakes ideological clash that—absent a plaintiff with a bona fide injury—standing doctrine is supposed to filter out. I’m with Gerard Magliocca in thinking that “[i]t would be highly improper (and embarrassing) for the Court to decide the merits of such an important case when there are doubts about whether this is actually a ‘case or controversy’ under Article III.”
Doctrinally, too, the do-nothing approach would be anomalous. It would suggest that a defendant’s failure to object to a plaintiff’s factual averments could affect the standing inquiry. That, in turn, would license the parties to collude to create standing (“I’ll sue you, don’t contest my declaration, and we’ll get an advisory opinion from the courts.”). Although the courts can’t and shouldn’t confirm the veracity of every sworn declaration, there must come a point at which sufficient doubts have been raised to warrant further inquiry. In my judgment, we’ve reached that point in King.
On a more practical note, standing is likely to come up at oral argument—even if a majority of the Court would prefer to duck the issue. Valuable argument time would be spent in unproductive, confusing discussions about VA status and income levels. The justices would then have to assess standing on the fly, without the benefit of a concrete, written explanation of why the plaintiffs have standing.
There’s a better way. The Court could call for supplemental briefing (or, alternatively, it could instruct the plaintiffs to address standing in their reply brief, which is due on Friday). The idea would be to get the plaintiffs’ lawyers to explain the factual basis for their clients’ standing. Ordering such briefing wouldn’t be unprecedented: in a case decided in 2000, for example, the Court ordered supplemental briefing on standing the day after oral argument. And such briefs often address questions pertaining to mootness.
I don’t see substantial downsides to supplemental briefing. Time is running short to get the briefs prior to oral argument, but, even if the briefs were due afterward, they would help to illuminate whether King is properly before the Court. Doing nothing in the face of continued silence from the plaintiffs is no longer a tenable approach.