March 12, 2025 – Judge Michael Y. Scudder wishes that people would speak more to their elected officials than to lawyers and judges.

“By staying in their lane, federal courts leave certain matters to us as people to resolve in the first instance,” Scudder said. “We can and should voice our perspectives more directly by attending a city council, school board, or any number of other policy-making meetings. By attending and speaking up, we exercise a right our constitution not only protects, but as a structural matter sees as essential to the operation of our democracy.”

Scudder, who serves on the U.S. Court of Appeals for the Seventh Circuit, spoke at Marquette University Law School on March 3 for the annual Hallows Lecture. Before his service as judge, Scudder worked as general counsel in the White House and was a partner at Skadden, Arps, Slate, Meagher & Flom LLP in Chicago.

Speaking on “Resorting to Courts: Article III Standing as the Guardian of Free Speech and Democratic Self-Governance,” Scudder explained that by limiting the range of federal courts, justiciability principles support First Amendment protections that further democracy.

Eau Claire Case

The recent Parents Protecting Our Children v. Eau Claire Area School District case exemplified the discussion. Parents sued because they were concerned about district guidance regarding student gender identity that could involve the district speaking with a student before talking with parents.

The parents’ facial constitutional claims included substantive due process and free exercise challenges under 42 U.S. Code section 1983. They asked the court to enjoin the policy before the parents had had any experience with it, Scudder said.

The U.S. District Court for the Western District of Wisconsin, the Seventh Circuit Court of Appeals, and finally, the U.S. Supreme Court in a 6-3 decision against granting certiorari, concluded the plaintiffs lacked standing.

Although the parents had “genuine concerns,” said Scudder, who drafted the Seventh Circuit opinion, the parents had not suffered “actual or imminent injury” from the guidance, Scudder said.

In addition, the complaint offered “no suggestion that any parents had approached the school district or any school administrator to discuss plans for implementing the administrative guidance.”

Article III of the U.S. Constitution required dismissal, Scudder said. The case “implicates structural considerations of federalism,” and further, “implicat[es] the role of free speech.”

Standing is not a conservative win and liberal loss, or vice versa, Scudder explained. The “winner” of five U.S. Supreme Court decisions on standing, including two in the last term, “sure seems to be structural constitutionalism.” Congress, the executive branch, and state and local government, instead of federal courts, should resolve such issues.

In Parents Protecting Our Children, Scudder noted that although the parents had a genuine concern, “nowhere in the complaint or any of the parties’ briefs did the court see … any indication that any of Parents Protecting members asked the school district how it planned to implement its guidance.”

Speaking Up Instead of Suing

“Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and often find common ground where agreement seems beyond reach,” Scudder said.

This design “envisions constitutional answers coming in slower paced increments than contemplated by pre-enforcement challenges,” such as Parents Protecting Our Children, Scudder said. “Sometimes the law develops best when principles, doctrines, and answers come with time, and I might add, with more speech and dialogue helping to bridge social divides.”

Federalism leaves states, and within them, local communities, to decide such delicate, fundamental issues because each community may have a different answer, Scudder explained. Justice Louis Brandeis’ “Laboratories of Democracy” contemplates a diversity of results that may lead to the best solution.

Why do “these culture war disputes find the federal courthouse more attractive than discourse and dialogue?” Scudder asked. Issues about sexual orientation, library contents, or vaccine mandates lead to “stalemates, if not shouting matches, literally or electronically between mutually exclusive perspectives.”

From ‘Marketplace of Ideas to ‘an Ocean’

“Yesterday’s image of the public square, Norman Rockwell-like gatherings and people coming together to discuss, debate, to find common ground on questions about local affairs seems absent, if not unrealistic, for many,” Scudder said.

“So much of our communication today does not occur in groups of any kind, much less with members of our communities. Quite the opposite. Most of our interactions occur when we are communicating alone, each of us by ourselves sending and receiving information on our phones, tablets, and computers.”

The loss of direct communication has led to increased incivility, Scudder said. “Too many people write things in a text or post that they would never say to someone in person.”

Just as the public square may seem alien, so too may be Justice Oliver Wendell Holmes’ “Marketplace of Ideas.” Scudder suggested that “most of us have created our own marketplace …. Indeed, we might even think of those marketplaces as little fishbowls we confine ourselves within and populate as we choose.”

Necessity may drive the choice, Scudder explained. “Today’s internet age … is not like yesterday’s town square. It’s more like a massive ocean, more and more water than we can grasp or measure, always producing waves and storms, and leaving us feeling adrift … leaving us not sure how to participate.”

The choice of a “tolerable equilibrium,” Scudder said, comes at the cost of limiting speech and reducing the range of our information, encouraging skepticism and cynicism with “tremendous mistrust of public officials, fellow parents, and neighbors. Bridging divides, brokering compromise, and striving for middle ground seems bygone.”

Observations from the Judiciary

Scudder concluded his remarks with “some observations I’ve formed since joining the federal judiciary” in 2018.

The limits to judicial power leave significant policy roles to Congress and the president nationally and to state and local officials. In this design, the federal judiciary serves a limited role, “not about preferring the right lane or the left lane, and definitely not about promoting or pursuing any particular outcome, but about resolving only concrete disputes between adverse parties.” These limits leave room for democratically elected policy makers to address the most complicated and sensitive issues.

Returning again to Parents Protecting Our Children, Scudder concluded, “[t]he decision is better seen as a court respecting Article III’s limitation and leaving, at least for the time being, questions about the application of the policy to ongoing dialogue or perhaps robust questioning in school board meetings or one-on-one meetings with parents, principals, and counselors.”

Some may see the greater challenge as “getting policy makers to listen, empathize, and show a willingness to find common ground,” and they may be true, Scudder said. Democracy itself is complex. “But one thing I believe for certain: The solution cannot be to give up on speech altogether.”

“It’s all about reinvigorating our sense of community, attending the local meeting, and engaging in respectful and informed dialogue. That’s the recipe we endorsed in 1789, and it’s the one we need to reinvent in 2025 by investing in relationships to bridge our many social divides.”