Camreta v. Greene and Article III Standing

Based on an initial read, I find today’s decision in Camreta v. Greene quite puzzling; to my mind, the dissent has the much better of the argument. In Camreta, the Court agreed to review a decision of the Ninth Circuit in which the Ninth Circuit rejected a Fourth Amendment civil suit filed against government officials. The Ninth Circuit’s ruling had two steps: first, it ruled that the government practice violated the Fourth Amendment; and second, it ruled that the government officials were entitled to qualified immunity. The winning party below (the government) then sought review of the first step (the Fourth Amendment ruling) which had no impact on the outcome of the case. One of the questions in the case was whether a winning party has Article III standing to seek review of adverse part of an opinion in a decision ultimately in its favor.

In today’s majority opinion by Justice Kagan, the Court rules that the case was moot for other reasons, but then goes on to conclude anyway that yes, a winning party has standing to seek Supreme Court review of adverse language in some cases. Specifically, as is the case here, there is Article III standing when the “immunized [government] officials seek to challenge a determination that their conduct violated the Constitution” and the government “regularly engages in the challenged conduct.” In effect, there is Article III standing so long as the litigants really have a good reason to care about the outcome in light of the future of the institutions that they represent and who they are:

If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability. And conversely, if the person who initially brought the suit may again be subject to the challenged conduct, she has a stake in preserving the court’s holding. Only if the ruling remains good law will she have ongoing protection from the practice.

It seems to me that if you take this argument seriously, it signals a pretty significant shift in standing doctrine. It’s a sort of holistic approach to standing: You ask not whether a ruling would change the outcome of that case, but whether the litigants have a good reason to care about the issue they want litigated. I suppose it’s appropriate that this ruling comes in a case ultimately decided on mootness grounds: If you’re going to say that there is standing to challenge language in a ruling ultimately decided the other way on other grounds, there is no more appropriate place to do it than through language in a ruling ultimately decided the other way on other grounds.

I find Justice Kennedy’s dissent (joined by Justice Thomas) persuasive:

The rule against hearing appeals or accepting petitions for certiorari by prevailing parties is related to the Article III prohibition against issuing advisory opinions. This principle underlies, for example, the settled rule against hearing cases involving a disputed judgment based on grounds of state law. As Justice Jackson explained for the Court: “[O]ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn, 324 U. S. 117, 125– 126 (1945). This point has been repeated with force and clarity. See, e.g., Michigan v. Long, 463 U. S. 1032, 1041– 1042 (1983). The “‘judicial Power’ is one to render dispositive judgments,” not advisory opinions. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 219 (1995).
. . .
When an officer is sued for taking an extraordinary action, such as using excessive force during a high-speed car chase, there is little possibility that a constitutional decision on the merits will again influence that officer’s conduct. The officer, like petitioner Alford or the petitioner in Bunting, would have no interest in litigating the merits in the Court of Appeals and, under the Court’s rule, would seem unable to obtain review of a merits ruling by petitioning for certiorari. This problem will arise with great frequency in qualified immunity cases. Once again, the decision today allows plaintiffs to obtain binding constitutional determinations on the merits that lie beyond this Court’s jurisdiction to review.

Looking down the road, this decision could have interesting implications for the standing in surveillance cases. Consider the Second Circuit’s recent decision in Amnesty International v. Clapper that held — very much cutting across the grain of existing law — that a group of journalists and activists have Article III standing to challenge recent amendments to the Foreign Intelligence Surveillance Act because they reasonably spent money to avoid the surveillance that they fear (but don’t know) is occurring. My post on Clapper is here. DOJ recently filed a petition for rehearing in that case, and if rehearing is denied, may seek Supreme Court review. Before today, I would have thought that Clapper was a likely reversal at the Supreme Court. But off the top of my head, I would think the new decision in Camreta v. Greene significantly supports a claim of standing in Clapper. After all, it’s a lawsuit against government officials brought by people who really care about the outcome in which the goal is to “gain clearance” as to what the law is. There are ways of distinguishing the two cases, but I would think Camreta now lends some significant support to the Clapper suit.