Did liberal justices invent the standing doctrine? An empirical study of the evolution of standing, 1921-2006.

• Author: Ho, Daniel E.

INTRODUCTION I. THE INSULATION THESIS A. The Claim: Purposive Innovation B. The Importance of Insulation 1. Practical 2. Scholarly C. Theoretical Muddiness D. Alternative Explanations II. WEAKNESS OF EXISTING EVIDENCE A. Haphazard Case Selection 1. Contrary cases 2. Unanimous cases 3. Peripheral cases 4. Timing B. Extrinsic Evidence III. THEORETICAL CLARIFICATION A. Observable Implications B. Caveat on the Hazards of Historical Inquiry IV. DATA COLLECTION A. Case Selection 1. Population enumeration by leveraging expertise 2. Inclusion criteria B. Outcome Measurement C. Merits Data and Baseline Statistical Model V. RESULTS A. The Unanimous Rise of Standing B. Standing as Liberal Insulation C. The Reversal of Standing VI. IMPLICATIONS A. Standing and Politics B. Historical Cognizability C. Separation of Powers D. Constitutional Evolution and the Role of Individual Justices E. Judicial Innovation and Unintended Consequences APPENDIX A. Data Collection Protocol 1. Merits data 2. Validation 3. Standing enumeration 4. Measuring standing votes 5. Early unanimity B. Statistical Model C. Robustness 1. Pooling the merits 2. Timing 3. Measurement uncertainty in standing view INDEX OF TABLES AND FIGURES FIGURE 1: SOURCES AND SEARCHES USED TO OVERCOME CASE SELECTION BIAS FIGURE 2: REPRESENTATION OF VOTES IN LUJAN V. DEFENDERS OF WILDLIFE FIGURE 3: MERITS VIEWS OF JUSTICES FOR THREE NATURAL COURTS FIGURE 4: SUPREME COURT IDEAL POINTS OVER TIME FIGURE 5: EARLY UNANIMITY ON THE COURT FIGURE 6: PROPENSITY TO RAISE STANDING IN UNANIMOUS CASES, 1921-1937 FIGURE 7: CASELOAD AND THE TRANSFORMATION TO THE DISCRETIONARY DOCKET FIGURE 8: EXPRESS STANDING DISAGREEMENTS OVER TIME FIGURE 9: REVERSAL IN MERITS-STANDING PREFERENCES OVER TIME FIGURE 10: CASE SPECIFIC SUMMARIES OF VALENCE OF DENYING STANDING FIGURE 11: DECADE BY DECADE TRENDS OF CORRELATION BETWEEN MERITS AND STANDING FIGURE 12: DECADE TRENDS IN THE PROPENSITY TO GRANT STANDING FOR JUSTICES DOUGLAS AND BLACK FIGURE 13: CASE VALENCE AND RELATIONSHIP TO THE NEW DEAL TABLE 1: SOURCES USED TO COMPILE MERITS DATA TABLE 2: DATA VALIDATION FOR EXISTING DATA FIGURE 14: STANDING DISAGREEMENTS FOR 1923 THROUGH 1952 COURT TERMS TABLE 3: STANDING DISAGREEMENTS FOR 1923 THROUGH 1952 COURT TERMS. TABLE 4: SOURCES FOR VOTING BLOCS ON EXPRESS DISAGREEMENTS ABOUT STANDING TABLE 5: ACCURACY OF THE SPAETH "ISSUE" CODINGS FIGURE 15: ROBUSTNESS TO MEASUREMENT OF MERITS FIGURE 16: BREAKPOINT SENSITIVITY ANALYSIS FIGURE 17: ACCOUNTING FOR MEASUREMENT UNCERTAINTY IN MERITS AND STANDING VIEWS INTRODUCTION

The standing doctrine is the Rorschach test of federal courts. In theory, the doctrine serves a distinct function, namely ensuring that a litigant is the proper party to bring a claim in court. (1) Yet standing remains one of the most contested areas of federal law, with criticisms of the doctrine nearing the number of commentators. (2)

Indeed, even the most basic question of the origins of the standing doctrine eludes scholars. Conventional accounts focus on the nature of the case or controversy requirement, the collision between the administrative state and private rights-based models of judicial resolution, and caseload management. (3) In contrast, one revisionist account, proposed by Steven Winter and Cass Sunstein, is that progressive Justices purposely invented and constitutionalized the standing doctrine in order to insulate New Deal agencies from judicial review. (4)

When advanced just twenty years ago, this New Deal "insulation thesis" inverted the conventional perception of the doctrine's political valence. Rather than supporting the conservative goal of keeping broad-based public interest litigation out of court, restrictive standing requirements may originally have achieved precisely the opposite result: preserving and enshrining the liberal New Deal administrative state.

While provocative, (5) prominent, (6) touted by some as the "definitive history of standing," (7) as "part of the canon of Constitutional Law," (8) and as the now "general stock of conventional wisdom," (9) the insulation thesis is thinly theorized and rests on fragile empirical grounds. In this Article, we synthesize the understanding of the insulation thesis and provide the first systematic empirical study of the historical evolution of the Supreme Court's standing doctrine. Examining over 1500 cases cited in major historical treatments of the doctrine and backdating all merits votes to 1921, we compile a new database of every contested standing and merits issue decided by the Supreme Court from 1921-2006. We find compelling support for one version of the insulation thesis in the New Deal period, with three central findings that refine extant accounts.

First, the insulation thesis does not fully explain the conception or invention of the modern standing doctrine. From 1921-1930, standing arose largely unanimously. Progressives and conservatives exhibited no systematic disagreement as to the doctrine. Early unanimity may be consistent with an alternative explanation of caseload management, occurring at the same time as the Supreme Court's conversion to the discretionary docket.

Second, unanimity collapsed with the New Deal period, and cases from the 1930s and early 1940s provide substantial support for the insulation thesis. Standing disagreements came to embody systematic differences across Justices, with progressive Justices disproportionately denying (and conservatives granting) standing. The trend is most pronounced in cases involving New Deal legislation and administrative agencies. This period of liberal insulation was short, unraveling in the 1940s. By 1950, the doctrine's political valence reversed entirely. Compared to votes in cases on the merits, liberals were uniformly more likely to favor--and conservatives more likely to deny--standing. The contrast between the sharp conservative valence of the post-1950 period and the liberal valence of the New Deal era provides striking evidence for progressive use, if not invention, of the standing doctrine during the New Deal period.

Lastly, our analysis provides considerable insight into the role of individual Justices in crafting the doctrine. Justice Brandeis--posited by the insulation thesis to be the early architect of the standing doctrine--was far more inclined than any other Justice to raise standing in early unanimous cases. Justice Frankfurter consistently preferred a strong version of the standing doctrine. In contrast, the voting patterns of Justices Douglas and Black reflect the transformation of the doctrine. For example, Douglas voted largely to deny standing during his early years (a compelling fact missed, as far as we are aware, by existing accounts), but favored finding standing in every single case heard after 1950. (10)

Our Article proceeds as follows. Part I sketches the New Deal insulation thesis, discusses its practical and scholarly importance, examines its theoretical variations, and considers alternative explanations for the rise of standing. Part II surveys extant support for the theory, which is surprisingly scarce: cases cited in support of the insulation thesis are haphazardly selected, and many of these cases are uninformative about, peripheral to, or plainly contradict the insulation thesis.

Part III synthesizes the insulation thesis and spells out how to test its veracity. Given the malleability of the standing doctrine, this type of objective inquiry faces distinct difficulties. The Rorschach-like nature of standing is compounded going back in time, when the boundaries of the doctrine are less clear. These difficulties may well explain why existing historical accounts diverge so sharply. Part IV discusses our large-scale data collection effort, which addresses these hazards of historical inquiry by articulating transparent case selection criteria and compiling, reading, and classifying every case cited across a large range of historical treatises, books, and law review articles. We merge this new dataset with all merits votes cast from 1921-2006 to leverage variation across Justices, time, and issues. Part V presents results, which clarify, synthesize, and unify existing accounts of the early rise of the standing doctrine. Part VI concludes with legal and policy implications.

1. THE INSULATION THESIS

   1. The Claim: Purposive Innovation

      The insulation thesis posits that New Deal progressive Justices purposely invented the standing doctrine to insulate administrative agencies from judicial review. In lieu of a doctrine embedded in Article III, standing is a "distinctly twentieth century product that was fashioned out of other doctrinal materials largely through the conscious efforts of Justices Brandeis and Frankfurter." (11) The development of standing was a "calculated effort" (12) by liberals to "assure that the state and federal governments would be free to experiment with progressive legislation." (13) Professor Steven Winter, who first advanced the claim in 1988 in a seminal piece in the Stanford Law Review, argues that Brandeis and Frankfurter developed the standing doctrine, along with other procedural limitations, to avoid engaging in substantive due process inquiries that might invalidate progressive legislation. (14) Similarly, Professor Cass Sunstein argues the doctrine was borne out of New Deal faith in expert regulatory agencies and skepticism of generalist courts' capacity to deal with complex affairs of a welfare economy. (15) Progressive Justices doubted the ability of the common law to address grave economic challenges of the Depression. (16) By avoiding the merits, the Court could heed Brandeis's admonition that "the most important thing we do is not doing," (17) and avoid meddling in innovations of the legislative and executive branches.

      The insulation thesis suggests that particular judges implemented the doctrine, albeit in fits and starts. According to Winter, Brandeis first attempted to create...