It won’t make it into the daily headlines, but it will be deeply important in the annals of history. That is the quiet but intense debate among the Supreme Court Justices over how far the Court should go in using its powers. The storm broke out again on Monday, as the Court ruled in a dispute over the rights of free speech for college students.
They did not rule on the First Amendment and its impact on campus life; that likely would have been big news. Rather, they decided another case on the meaning of the Constitution’s Article III, and how that supposedly puts some limits on judicial authority. It is an issue that was of the greatest interest to the Founders in 1787, and it is an issue that Justices have debated ever since.
This time, that debate led to an 8-to-1 decision, with Chief Justice John G. Roberts, Jr., writing a solitary dissent for the first time in his 15-plus years on the Court. That, alone, is a major indicator of how important the outcome was. Although the students prevailed, they won a verdict of exactly $1, which is what they had asked for in the lawsuit seeking to vindicate their right to deliver religious speeches to their classmates on the campus of Georgia Gwinnett College, in Lawrenceville, GA.
Far more significantly, in history’s measure, is that the students were confirmed in their right to file their lawsuit even though they were only asking for the paltry sum — what the law calls “nominal damages.” For the first time, the Court basically ruled that, if there is a legal injury done, and the cause is identified, the Constitution will always provide a remedy in the federal courts.
A remedy for every legal wrong probably seems, to most people, as merely common sense: why should a violation of one’s rights ever go unremedied?
The answer to that question, of course, is in the language of Article III and its interpretation. Article III says that the federal courts – including the Supreme Court – are authorized only to decide “cases or controversies.” Those words are not defined.
But in one of the Court’s most significant interpretations of those words – in a 1793 letter to then-Secretary of State Thomas Jefferson, not a formal decision – the Justices declared that they have no power to give legal advice. In other words, advisory opinions are forbidden, and the judicial power granted by Article III extends only to decide real, live, legal disputes between two contending sides.
That limitation, the 1793 letter said, is vital to the constitutional separation of powers. If the federal courts went beyond deciding actual legal cases, it said, that would threaten to intrude on the powers of the Presidency to carry out the laws and Congress to write the laws. Constitutional scholars and other lawyers and judges understand that limitation as the doctrine of “standing,” which is simply a lawyerly way of saying “having a right to sue.”
Who has a right to sue in the federal courts? A dramatic answer to that question, though stated in dry judicial language, came last December when the Court ruled 7-to-2 that the state of Texas could not sue four other states because it lacked “standing” to do so, under Article III. The Court’s order read: “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
Translated, that meant that the Court was not persuaded that Texas had suffered any legal injury or that any other state was at fault.
Since then, the Court has appeared to be more deeply divided over the “standing” issue. For example, the Court split in refusing to hear President Trump’s challenges to his election loss in Pennsylvania, even though there was no way the Court could have remedied the harm he claimed because not enough votes were at issue.
And the Court has overturned lower court rulings restricting religious worship services during the pandemic even though the policies at issue were no longer in effect – in other words, there was no existing wrong to be remedied.
This internal conflict goes to the hart of the current Court’s understanding of the “case or controversy,” or “standing” doctrine. The basic formula the Court has used for many years requires those who seek to sue in the federal courts to satisfy a three-part test. First, the one suing must show an injury; second, it must identify the cause, and, third, the remedy sought must be one within the court’s power.
In the Gwinnett College students’ case, the Court’s majority said that the students had shown their free-speech rights were violated by a campus rule used against their proselytizing, and that the college rule was to blame. The controversy within the Court, then, focused on the third part of the test: could the court redress the harm?
Paraphrased, to its essence, this is Justice Thomas’ answer: asking for nominal damages is enough to open the courthouse door to their claim. Behind that answer was a great deal of history: Thomas reached as far back as 1703 in England’s common law history, and found that “every legal injury necessarily causes damage,” so asking only for “nominal damages” was enough to keep a case alive in the courts. Thomas also found support for that proposition in the writing of Justice Joseph Story, in one of that famous jurist’s commentaries on the law in 1839.
Chief Justice Roberts’ dissenting opinion sought to answer Thomas’ opinion point-by-point, disputing his use of English history and of Justice Story’s views, and arguing that there was nothing left of the Georgia students’ case now. The two students, he noted, are no longer attending that college, the college has abandoned the rules they challenged, and the students’ sought no more than $1. Roberts expressed worry that the majority’s approach will weaken Article III’s basic requirements.
He wrote: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar….I would place a higher value on Article III.”
Why did the Chief Justice’s opinion draw no support from any of his colleagues? There are probably several explanations. Some of the conservative Justices are very keen on protecting those who claim harm to their religious freedom. Some of the liberal Justices are equally keen on keeping the courts open more widely.
One thing is certain, however: the Article III storm will go on raging among these Justices, and the contemporary meaning of Article III will likely be swept in different directions, case by case.
Reading today’s entire ruling would be a worthwhile use of anyone’s time, even allowing for the fact that there is a lot of legalese throughout. It can be found at this link: