Page:Biden v. Nebraska.pdf/56

Rh hot or divisive. But Missouri? In adjudicating Missouri’s claim, the majority reaches out to decide a matter it has no business deciding. It blows through a constitutional guardrail intended to keep courts acting like courts.

The majority does not over-expend itself in defending that action. It recites the State’s assertion that a “harm to MOHELA is also a harm to Missouri” because the former is the latter’s instrumentality. But in doing so, the majority barely addresses MOHELA’s separate corporate identity, its financial independence, and its distinct legal rights. In other words, the majority glides swiftly over all the attributes of MOHELA ensuring that its economic losses (1) are not passed on to the State and (2) can be rectified (if there is legal wrong) without the State’s help. The majority is left to argue from a couple of prior decisions and a single idea, the latter relating to the State’s desire to “aid Missouri college students.” But the decisions do not stand for what the majority claims. And the idea collides with another core precept of standing law. All in all, the majority’s justifications turn standing law from a pillar of a restrained judiciary into nothing more than “a lawyer’s game.” Massachusetts v. EPA, 549 U. S. 497, 548 (2007) (, dissenting).

The majority mainly relies on Arkansas v. Texas, 346 U. S. 368 (1953), but that case shows only that not all public instrumentalities are the same. The Court there held that Arkansas could bring suit on behalf of a state university. But it did so because the school lacked the financial and legal separateness MOHELA has. Arkansas, we observed, “owns all the property used by the University.” Id., at 370. And the suit, if successful, would have enhanced that property: The litigation sought to stop Texas from interfering with a contract to build a medical facility on campus. For the same reason, the Court found that “any injury under