The Supreme Court headline for today is the Court’s 6-3 decision narrowing the application of Section 2 of the Voting Rights Act in Louisiana v. Callais. Before deciding Callais, however, the Court also decided First Choice Women’s Resource Centers v. New Jersey.
In First Choice, a unanimous Court concluded that a pro-life religious organization had Article III standing to challenge the constitutionality of a subpoena from the New Jersey Attorney General demanding information about the nonprofit’s financial supporters. As occurred with the mifepristone litigation, the fact that this case touches on abortion did not prevent consensus among the justices.
Justice Gorsuch wrote for the Court, making quick work of the arguments accepted by the lower courts and advanced by New Jersey. As Justice Gorsuch notes, “the question before us all but answers itself.” Nonetheless, three of the four lower court judges to consider the case reached the opposite conclusion.
From Justice Gorsuch’s opinion:
This case presents a narrow question. We are not asked to decide the merits of First Choice’s federal lawsuit, only whether it may proceed. Article III of the Constitution vests federal courts with the “judicial Power” to decide “Cases” and “Controversies.” §2, cl. 1. Inherent in that assignment is a “standing” requirement consisting of three elements: “injury in fact, causation, and redressability.” Diamond Alternative Energy, LLC v. EPA, 606 U. S. 100, 110– 111 (2025). Together, these elements help us distinguish cases and controversies fit for judicial resolution from questions of public policy reserved to the elected branches or abstract disputes better left to the debating hall. See ibid.
As this case comes to us, it centers on the injury-in-fact element. To satisfy that element, a case must involve “an injury that is concrete, particularized, and actual or imminent.” Id., at 111 (internal quotation marks omitted). Because this standard tolerates suits involving “actual or imminent” injuries, a party need not always wait for the government to take coercive action against it before filing suit to challenge the government’s conduct. Instead, a litigant may bring a pre-enforcement suit seeking prospective relief against government officials so long as it faces “a credible threat of enforcement.” See Susan B. Anthony List v. Driehaus, 573 U. S. 149, 161, 164–167 (2014).
Before us, First Choice advances two arguments for why it can satisfy the injury-in-fact requirement. First, the group submits that the Attorney General’s subpoena itself—and specifically its demand for donor information— has caused it to suffer an actual and ongoing injury to its First Amendment rights by deterring donors from associating with it. Second, First Choice contends that it faces an imminent future injury because with the subpoena came a credible threat that the Attorney General would seek to enforce it in state court if the group failed to comply. For our purposes, it suffices to address only the first theory as it is enough to carry the day.
And the opinion concludes:
Since the 1950s, this Court has confronted one official demand after another like the Attorney General’s. Over and again, we have held those demands burden the exercise of First Amendment rights. Disputing none of these precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeeds. Accordingly, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
