Sam (Alito) the Hypocrite

By Hirsh M. Joshi
Patrick O’Reiley Legal Fellow
Freedom From Religion Foundation

Supreme Court Justice Sam Alito can do it all: historian, environmental scientist, gynecologist — pretty much anything. But one thing Sam Alito can’t do is stay consistent in his judicial opinions about standing, and a recent dissent he wrote highlights this more than ever.

Let’s get the awkward part out of the way first. Back in 2007, the Freedom From Religion Foundation was before the Supreme Court challenging the constitutionality of President Bush’s creation of the White House Office of Faith-Based and Community Initiatives and other offices. Every case must meet the threshold of “standing,” or whether the plaintiffs have an injury that gives them the right to have a federal court hear their case. Standing is a doctrine that comes from Article 3 of the Constitution, which created the Supreme Court and determined its jurisdiction to hear cases. Although a  federal district court dismissed FFRF’s case for lack of standing, the 7th U.S. Circuit Court of Appeals reversed, holding that FFRF had “taxpayer standing” to challenge the White House’s disbursements for religious programming.

The Supreme Court, in a 5-4 decision, then overturned the appeals court decision, with who else but Sam Alito writing for the majority. Alito stressed that the Establishment Clause’s wording, “Congress shall make no law…” means that only congressional spending actions can be challenged. Because FFRF was challenging a spending action by the executive branch, the taxpayer standing doctrine did not apply. The Supreme Court held that, without a tie-in to congressional action, FFRF and its taxpayer plaintiffs lacked an injury and therefore lacked standing, so the case was dismissed and the merits were never considered.

Fast forward to Dec. 9, 2024: Donald Trump has won an election, states are imposing religion on public school students, and transgender people’s rights are under attack. Meanwhile, one school district in Wisconsin tried to help. The Eau Claire Area School District issued “Administrative Guidance” on “Gender Identity Support,” which allowed transitioning students to rely on their teachers and counselors to help them socially transition. Part of the initiative allows children to come out to their parents on their own time, to reduce the trauma of being rejected by nonaffirming parents. That’s sound policy. This guidance allowed teachers and counselors to make a discretionary decision not to inform transitioning students’ parents about their transition until a student was comfortable.

That led to a lawsuit from the newly formed organization “Parents Protecting Our Children.” The group sued the Eau Claire Area School District, alleging a violation of the plaintiffs’ “fundamental constitutional right to make decisions concerning the rearing of their children.” The outfit claims that the district’s policy destroys that right because a student’s gender is apparently a parent’s decision to make. Parents Protecting Our Children also claimed that the First Amendment’s Free Exercise Clause guaranteed them the right to raise their children according to the dictates of their own religion. So, if a parent’s religious belief involved beating their child, Parents Protecting Our Children’s logical stance is that the Free Exercise Clause lets them do so, and no public school or government could intervene.

The district court — the same one that dismissed FFRF’s suit back in the day — dismissed the Parents Protecting Our Children lawsuit for lack of standing. Then, the 7th Circuit affirmed. After all, the group did not allege that any of their own children are seeking gender transitions or will transition in the future. Therefore, their injury is only speculative, it’s a “maybe” not a “likely.” That’s not good enough to get a federal court to hear your case.

Parents Protecting Our Children appealed to the Supreme Court. And earlier this week, on Dec. 9, the Supreme Court denied certiorari. That means they decided not to review the case, leaving the appeal court’s decision stand. Four justices are needed to take a certiorari petition up. Three justices openly dissented from the certiorari denial: Brett Kavanaugh, Clarence Thomas and Sam Alito. Kavanaugh decided not to pen a dissent. Sam Alito needed the world to hear his roar, so he wrote a dissent, joined by Thomas.

In his dissent, Alito stresses that the lower courts have gone too far in rejecting standing for constitutional claims. Alito says that he is “concerned that some federal courts are succumbing to the temptation to use the doctrine of Article 3 standing as a way of avoiding some particularly contentious constitutional questions.” That’s rich coming from the guy who punted FFRF’s “contentious constitutional question” using “the doctrine of Article 3 standing.”

Even more ironic, in his dissent, Alito claims that the lower courts have misunderstood the Supreme Court decision, Clapper v. Amnesty International, in which the court found that Amnesty International lacked standing to ask a court to declare the Foreign Intelligence Surveillance Act unconstitutional. The Supreme Court decided to punt a “contentious constitutional question” using “the doctrine of Article 3 standing.” And who authored Clapper? None other than Sam Alito himself.

So, when it comes to constitutional questions that Alito doesn’t like, plaintiffs — such as FFRF and Amnesty International — lack standing. But when a group of homophobic parents get together to bully a school board, Alito magically turns into Thurgood Marshall in City of Los Angeles v. Lyons, advocating for the most liberal of standing doctrines. Likewise, when Covid-19 conspiracy theorists are told to stop hurting people, they have standing, as Alito wrote in his dissent in Murthy v. Missouri.

As a side note, Alito’s Parents Protecting Our Children dissent doesn’t touch on the “fundamental constitutional right to make decisions concerning the rearing of … children.” That’s because that is an unenumerated right. And we know from his sexist rant in Dobbs v. Jackson Women’s Health Organization, that Sam Alito doesn’t like unenumerated rights, until, you know, he does. So, maybe Sam Alito is aware of his own hypocrisy? Or maybe he understands that his role is to corrupt and undermine the integrity of an independent judiciary.

But what else can we expect from a justice like Sam Alito? Alito is the same judge who thought that a Latin cross was a secular symbol because the cross on the Swiss flag and the crosses on Maryland’s flag are secular. Of course, for that line of reasoning about flags, Alito might just blame his wife. In fairness to Martha-Ann, the Swiss flag looks the same upside down as right-side up.

The extremist Supreme Court’s use of standing to deter civil rights and Establishment Clause claims is nothing new. FFRF has pointed out the court’s preferential manipulation of its jurisdiction — to its face — again and again and again. That’s once every year for the last three years running. We’ll see you in 2025, where we can call the shot already: Alito will say something hypocritical about standing. He’s earned the nickname of Sam the Hypocrite.