Ripeness, In and After SBA List v. Driehaus

Today's unanimous standing decision in Susan B. Anthony List v. Driehaus generally came as little surprise: confronted with speakers wishing to criticize candidates for office, the Court gave a green-light to a pre-enforcement First Amendment challenge. Along the way, however, the Court had a few interesting things to say about ripeness. In this post, I'd like to explore the possibility that SBA foretells future changes in ripeness doctrine.

By way of background, SBA List involved a First Amendment challenge to Ohio's law against recklessly false speech regarding officials and candidates for office. One of the plaintiff groups had previously suffered early enforcement proceedings under this law and felt chilled from further speech of a similar kind. Viewing the case as one about standing, the Court explained that the key question was whether the plaintiff's threatened injury was sufficiently likely. The Court found the requisite threat based on a variety of considerations, including the fact that the plaintiffs planned to continue speaking on the same subject and the legal possibility that administrative complaints could be initiated by any person, including political rivals with an incentive to do so. Though the Court didn't say so, these and other considerations seem to distinguish SBA List from the famous/infamous case Los Angeles v.  Lyons, which found that the threat of a police choke-hold policy didn't give rise to a justiciable injury.

Perhaps the most basic question in SBA List was what doctrinal box to use. The Sixth Circuit had treated the case as one about ripeness, by which it meant three factors: the likelihood of the alleged injury, the record's fitness for review, and the hardship to the parties if relief were postponed. By contrast, the Supreme Court focused on standing, which demands an actual or imminent injury in fact that is traceable to the violation and redressable by a favorable judgment. In a footnote, however, SBA List said that the standing and ripeness issues both "originate" in Article III and "boil down to the same question," at least in this case. In other words, the key issue was whether there was a sufficiently credible threat of enforcement to give rise to an adequately probable injury, as demanded under both standing and ripeness. Later, SBA List confronted the "prudential" ripeness factors going to fitness and hardship. After raising doubts about whether prudential grounds are ever a sound basis for denying federal jurisdiction, the Court left that matter for another day, since all the ripeness factors had been satisfied in the case at hand.

Reading between the lines, SBA List appears to be setting the stage for holding that the prudential ripeness factors aren't constitutional at all, but rather are either unwarranted or substantive components of certain statutes providing for judicial review. This move is familiar after the decision earlier this year in Lexmark International v. Static Control Components, which (among other things) clarified that "prudential standing" doctrines are actually substantive requirements embedded in various statutory causes of action. Making this connection apparent, SBA List quoted Lexmark when it noted that merely "prudential" factors normally aren't a sound basis for denying federal jurisdiction. This approach also seems consonant with recent ripeness cases. Consider National Park Hospitality Association v. Department of the Interior, a 2003 Supreme Court decision that, like SBA List, was written by Justice Thomas. While noting that ripeness is rooted in part in Article III, National Park described ripeness without breaking out likelihood of injury as a distinct requirement, and it followed Lujan in characterizing ripeness as being at least potentially grounded in the Administrative Procedure Act.

If the Court ultimately goes down this path, there is a chance that something valuable might be lost. Under the prevailing standing framework, the key question is whether the plaintiff faces a sufficient threat of injury. Under the ripeness heading, by contrast, the intuitive question is whether the plaintiff has a sufficient threat of injury right now, as opposed to at a later time. In other words, ripeness calls for a comparison of risks across time. That comparative or relative aspect allows the Court to alter the required showing of injury in light of the situation at hand. If the Court rejected that relative ripeness analysis as merely prudential, it might find it harder than expected to live with a non-comparative, one-size-fits-all notion of adequate injury for constitutional purposes. SBA List itself illustrates that difficulty when, in attempting to reconcile competing standing cases, it notes that imminent injury requires either a "certainly impending" injury or only a "substantial risk" of one. Relative analysis, it seems, is hard to purge from the law of justiciability.

The above is cross-posted from Re's Judicata.