A beginner’s guide to legal standing
Background: This entry began as a comment to The constitutional requirement that a president be “natural born” does not likely affect McCain, but grew to the point that it warranted its own blog entry. Thank you Sam, for the following question:
Q: “Is this standing stuff all just made up by nine guys who do whatever they want?”
Start with the principle the federal government was intended to be a government of limited powers. There were States to consider. And all the powers that weren’t going to be given to this new federal government via the Constitution were going to be left to the states and to the people. For the federal courts, one of the big limitations came in Article III, sec. 2, which said that federal courts could only adjudicate “Cases” or “Controversies.” That may not sound like much of a limitation (you might think, if it’s in court, it’s a case, right?), but over the years, the court has evolved a series of doctrines that define the scope of “case or controversy.” We call them justiciability doctrines. And incidentally, they’ve never made a big deal about the difference between a “case” or a “controversy,” so you can say “case or controversy” all in one breath, like lmno in the alphabet.
One of the major justiciability doctrines is this idea of “standing,” which differs from other justiciability doctrines in that it focuses more on the party before the court than it does on the issue before the court. In general, to have standing, you need three things:
- Injury: It’s gotta be a real injury, not just “this upsets my general sense of fairness.” It has to be concrete. Sometimes they say, “distinct and palpable.”
- Causation: Next you’ve gotta show that your injury is “fairly traceable” to the defendant’s actions. The defendant had to have caused your injury. But note, I said fairly traceable. That is, it isn’t just that they caused it, but that it’s fair to trace it to them. Here’s a bad example:
You punch me in the nose. My nose bleeds. I sue your mom. I have an injury, a nosebleed, it’s palpable and concrete, so I satisfy element one. Who caused it? Your mom caused it. If it weren’t for her, I tell the court, you never would’ve been born. And if you were never born, you never could’ve punched me in the nose, so I wouldn’t have gotten my nosebleed. Thus, my injury is traceable to your mom. Be we said it had to be “fairly traceable.” They mean fairly in the sense of fairness not “mostly.” So is it fair to trace my nosebleed to her? Probably not.
Some of you legal-minded folks may point out that my example is flawed because your mother’s conduct was not illegal.
Actually, I was underage when she and IYou make an excellent point. If you haven’t gone to law school, you might think this all sounds terribly arbitrary. Yes, causation is a mess. Superstar Dean Prosser said, “there is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such welter of confusion,” than the issue of causation. - Redressability: This element asks the question, what can the court do about it? If there’s nothing they can do, it’s not redressable. For example, say you go to a court and argue, “I think it’s illegal for the president to sign a bill into law, and then write a separate signing statement saying he’s not going to implement the law.” One reason a court might throw this out is that it’s not redressable. “What do you want us to do? Make him not have written the signing statement in the past? He already did it.”
To get back to your original question (is standing bullshit?), scholars disagree. Lawrence Tribe described standing as “one of the most criticized aspects of constitutional law.” 1 American Constitutional Law 190 (3rd ed.). According to Tribe:
Critics have charged the Supreme Court with habitually manipulating settled stranding rules to pursue extraneous, often unacknowledged ends–such as advancing the majority’s view of the merits, resolving problems associated with broad equitable relief, and serving federalism values.
Partly it all boils down to whether you believe the court exists to resolve matters between individuals or whether you believe “federal courts have a special responsibility, as the branch of government best able to develop a coherent interpretation of the Constitution, to engage in the exposition of constitutional norms.”
4 Responses to “A beginner’s guide to legal standing”
You have one but you haven’t been clear that there are two main reasons why the standing doctrine is important - two sepertions of powers.
The first reason is that the federal government is a government of limited power. This addresses he “vertical” seperation of powers (and perhaps the division between federal government power and individual rights.) That part you clearly have covered.
There is a second seperation of powers though, between the coordinate branches. So there are limits for what the Federal government may do, and there are further limits on which branch thereof may do them.
The U.S. Constitution, Art. I *explicitly* vests “legislative power” in the Congress, and “judicial power” in the courts in Art. III.
The Court makes much of this textual arrangement. Justiciability doctrines are as much about this separation as the other separation if not more. For that matter, these same two textual separations are at the heart of the [all too] familiar Erie doctrine.
What does this disticiton have to do with standing? The court takes the separation seriously by avoiding a number of acts that are more legislative than judicial in nature, except when it comes. One of these acts is the rendering of advisory opinions. There is a long history of refusal to render advisory opinions. It began when John Jay refused such a request from President George Washington and his SecState, some fellow of no great importance in Constitutional history.
There are, according to the court, several problems with advisory opinions. First, they waste the resources of the court because if the court is advising, it is not doing its constitutionally-assigned job of deciding cases-or-controversies. Second, idle pronouncements are a waste of the political capital of the court. Absent a standing doctrine, there could be a flood of lawsuits by people who have no more than an ideological stake in the outcome of a matter. Chemerinsky, _Federal Jurisdiction_ s. 2.3.1.
Third, advisory pronouncements, even if they were somehow to be treated as binding, would be legislative in nature, not judicial. For this trio of reasons the advisory opinion is anathema to the seperation of powers, and disfavored.
So the kicker is that a case where a party or parties lack standing is tantamount to an advisory opinion. Therefore, federal courts _must_ not hear such cases. Muskrat v. U.S. 219 U.S. 346 (1911).
So getting to the bottom line… does standing have a principled legal basis? Yes. Does it serve an arguably significant role in law? Yes. There are three main purposes. It preserves the seperation of powers, and the integrity of the Constitution, and preserves the resources of the court for where they are most needed. Chemerinsky, _Federal Jurisdiction_ s. 2.3.1 (again).
However, for all the good functions it stands for, the standing doctrine is in fact a legal WATERSHED. “Standing frequently has been identified by both justices and and commentators as one of the most confused areas of the law. Professor Vining wrote that it is impossible to read the standing decisions “without coming away with a sense of intellectual crisis. Judicial behavior is erratic, even bizarre.” Id (internal refs. omitted).
Why is it such a crisis? Because the standing doctrines is seldom applied with reference to its original, upstanding, notorious and cogent constitutional purposes. Instead, it is applied inconsistently, illogically, and perniciously, and, except for a brief period after Fred Vinson left the court, and before William Rehnquist joined, nearly always to the detriment of the party before the court who represents the interest posessing the lesser aggregation of societal wealth. (In other words, standing is nearly always used in such a ways as to preserve an act that preserves society’s status quo - to keep the “have nots” having not.) (By no means does the writer believe that the courts are a means to redistribute the wealth, or that the less wealthy party is always entitled to relief. However, the writer is always troubled when judicial officers use arcane, opaque, or stealth legal doctrines to deny relief to those parties who are of lesser wealth, and who have stated a cognizable legal claim, before a single fact has been proven in satisfaction or negation of that legal claim; he believes that such an approach is inconsistent with the rule of law at a very basic level.) Some of the most disgusting examples are on display in nearly all Constitutional Law and Art. III casebooks: Allen v. Wright, and Warth v. Seldin. Also disturbing are such cases as Simon v. Eastern Kentucky Welfare Rights Org., and Lujan v. Defenders of Wildlife, for reasons that I hope will emerge as common-sense evident from a brief reading or rereading thereof.
So there you have it. Once again, I have started out in agreement with you, intending to offer some addition, and ended up radicalizing everything, to the point of sounding like a born-again crit. Fascinating. If I may briefly conclude: standing is for real, in theory, and a mess, a vile, pernicious, mess, in practice.
Cheers,
-Matt
http://lots-o-thoughts.blogspot.com/
Thanks for this (and you’re welcome for the question).
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