America's fading public interest: Another bad USSC decision

Balls and Strikes reports about a lawsuit that transfers power from the public interest to corporate interests. The Diamond Alternative Energy v. EPA decision relied on a technical procedural ruling shifter power to corporate interests over the public interest. In this case, the Court ruled 7-2 that fuel producers have standing to challenge EPA-approved California regulations requiring automakers to produce more electric vehicles, reversing the D.C. Circuit's unanimous rejection of their lawsuit. The lower court said that car makers had standing to sue, not fuel producers.

Two USSC decisions, Diamond Alternative Energy and FDA v. R.J. Reynolds exemplify a profound structural transformation in American jurisprudence. This transformation systematically privileges corporate power while erecting barriers to public interest litigation. This shift operates through seemingly neutral procedural doctrines that, in practice, create asymmetric access to justice.[1]

The USSC's sleight of hand is in its willingness to accept asserted corporate economic harm as sufficient for standing. That is necessary to bring a lawsuit to start with. This fundamentally advantages corporate plaintiffs over public interest litigants. Corporations can easily articulate monetary injuries, e.g., reduced profits, lost market share, or compliance costs. Courts readily recognize that "concrete" harm. This kind of alleged injury is usually fairly straightforward to quantify and predict. 

By contrast, the damage that public interest litigants assert are usually diffuse and hard to quantify or predict. Damages are necessary for a plaintiff to have standing to sue. That allows the courts to easily reject public interest lawsuits on grounds of lack of standing. Diffuse harms to the public interest are just as real as corporate harms, but usually far harder to express in economic terms. How can one put a dollar amount on environmental degradation, public health risk, democratic erosion, or civil rights violations?

Power is now freely flowing from the public interest to special interests. This is another hallmark of MAGA authoritarianism.

Our democracy, rule of law and civil liberties are fading away.

Footnote:

1. This decision is another in a series of anti-public interest USSC rulings that has systematically lowered of barriers for corporate litigants while maintaining high hurdles for public interest litigants. Justice Ketanji Brown Jackson noted in dissent that "this case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens".

As usual for Democrats, Justice Jackson understates the situation, thereby blunting criticism or public alarm. Reality is not merely an "unfortunate perception" that moneyed interests enjoy an easier road to relief. It is factual that the law favors moneyed interests. What is wrong with the Democrats? They just cannot bring themselves to call a spade a spade.