Let Us Now Praise Famous Men

 

“I am concerned that some federal courts are succumbing to the temptation” to rely on standing as a way of “avoiding particularly contentious constitutional questions,” Alito wrote.

Plaintiffs sued because their school district had a policy on transgender students which might affect their children. The issue was whether they had an injury the court could recompense. Did they have standing, in other words. Except in very specific circumstances, the courts do not make orders regarding what some party may do at some time unspecified.

“The issue in the Wisconsin case is less about the underlying question of parental rights, and more about what plaintiffs have to show before they’re allowed to challenge government actions that may not have happened and may not ever happen,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

A speculative claim, in other words, precisely the kind courts leave to legislators. If a rule needs to be formulated in this instance, that’s how government works. It’s a classic, almost a textbook example of, standing. And Justice Alito doesn’t like it.

“In that respect, it’s a bit ironic that Justice Alito is publicly dissenting from the Court’s denial of review, since he authored the 2013 ruling that makes it harder for plaintiffs to sue in such cases. Then it was because plaintiffs challenging allegedly unlawful governmental surveillance couldn’t prove that they were likely to be surveilled,” Vladeck added.

You see, I hope, the similarities between the 2013 case and this one. Plaintiffs couldn’t show they were even likely to be surveilled, much less that they had. The bedrock issue for invoking the court’s authority is that you have been damaged. The possibility that someday you might be inconvenienced is not enough to do that. But Justice Alito seems to think that rule should apply in cases where he’s comfortable with the outcome. 

If you can’t prove you’re a victim of unlawful government surveillance, well, you can’t sue because you might be. No government can function where such conspiracy theories can turn into actionable claims. But the possibility government might support transgender care? Not the ridiculous claim by Trump of surgery occurring in the school building, but mere consideration for individual students:

Eau Claire Area School District officials counter that gender support plans are included in a student’s record and are available for parents to see. The policy, school officials said, is intended “to provide support to students who express concern about their gender identity.”

This risk, this possibility, that students might get answers to questions about gender identity, rather than being told never to think such things, is a risk Samuel Alito cannot abide. He can accept the risk of unlawful government surveillance, however attenuated that risk; but he cannot tolerate the risk that a student might consider an alternative to their birth gender.

He is the worst thing a judge can be: one who will undo even the fundamentals of the law for the sake of the outcome he prefers. It is the outcome that matters to him; not the rule of law.

No judge should be on the bench who is guided by that irresponsible and injudicious idea.