Standing and social choice: historical evidence.

• Author: Stearns, Maxwell L.

INTRODUCTION

The true test of any proposed model is neither its complexity nor its novelty. It is, instead, whether the model explains more data than the one that it is intended to supersede. The easiest way to criticize a model, including one built upon economic analysis, is to identify a point of reference, or datum, that the model fails to explain. The more difficult - and more useful - way to challenge a model, however, is to offer up an alternative that explains all the data that the prior model explains, plus one. Indeed, any scientific theory, including one based upon economic analysis, is valid only if it is falsifiable.(1) While it is invariably difficult to falsify any theory grounded in a social science, perhaps the best we can do is to embrace a credible theory - one that appeals to our intuition - until an alternative credible theory that accounts for at least one more datum is offered.

The lawyer faces a similar task. The effective lawyer learns to blend the image that affords her client relief with a larger and more compelling jurisprudential image composed of more points of reference - or dots - than that offered by her opponent. She does so by demonstrating that if the court grants her client relief, the picture that she has painted will remain essentially unchanged or, perhaps, even that its most important features will be sharpened. The ineffective lawyer, rather than offering up a new, and hopefully better, picture, simply tries to convince the decisionmaker that the existing picture is wrong. Most scholars who have considered the Supreme Court's standing doctrine have tried to demonstrate that the picture - at least as painted by the Supreme Court - is wrong.

In this two-article series, I hope to demonstrate that the social choice explanation of standing I offer accounts for more standing and nonstanding case law, and for more of the history surrounding standing, than do prior explanations. In Standing Back from the Forest: Justiciability and Social Choice,(2) I set out the theoretic framework, parts of which I will further develop here, and in this Article, I will present comprehensive empirical support to demonstrate that the social choice theory of standing meets the stringent test set out above. Together, in these articles, I hope to demonstrate that the social choice model I offer better explains three critical sets of data for assessing standing than does any prior model. In the prior article, I explained how standing fits within a larger jurisprudential framework and why standing is necessarily distinct from associated justiciability doctrines and from the cause of action inquiry.(3) In this Article, I further demonstrate that the social choice theory of standing better explains, first, the anomalous historical context in which the modern standing doctrine emerged; and second, and perhaps most importantly, the standing cases themselves. Without understating the difficulty of the assigned task, I also hope to do more. I hope to demonstrate in these articles that standing serves a critical, if rarely understood, purpose in furthering the separation-of-powers principles upon which our system of government ultimately rests.

The task before us then is, in a sense, as lawyerly as it is academic. Scholarship explaining that the Supreme Court's standing picture is wrong is abundant. Some of it has been written by now-sitting Supreme Court justices.(4) In this Article, I will not try to demonstrate what is wrong with this picture;(5) instead, using social choice theory, I will try to offer up a better picture, one that encompasses more data than has been captured in prior snapshots. If I succeed, I will argue that it is because I have taken a sufficient number of steps back, enough to embrace within my field of vision the implications of the theory of social choice for standing. Social choice is used here as a positive, rather than normative, tool. But the analysis has significant normative implications for the constitutional separation of powers between the Supreme Court - and the federal judiciary generally - and Congress.(6)

In Part I, I provide an overview of the social choice literature and framework as it relates to standing.(7) Part II will place standing in its historical context. In that Part, I will use the social choice framework developed in Part I to demonstrate that, in contrast with prior relevant Supreme Courts, the Burger and Rehnquist Courts were particularly prone to possessing multipeaked preferences.(8) I will then explain how and why the Court superimposed its three-prong standing test, initially created in the context of interpreting section 10(a) of the Administrative Procedure Act,(9) onto all federal court claimants, even those relying upon the Constitution for their substantive claims.(10) Finally, Part III will provide a comprehensive overview of the modern standing case law using the social choice framework set out in the prior article and in Part I. Part III will also explore the relationship between standing and other important bodies of case law, most notably criminal procedure. I will conclude by demonstrating that the social choice theory of standing better accounts for the historical context in which modern standing doctrine has emerged and the standing cases themselves than do prior theories.

1. Overview: The Social Choice Theory of Standing

   1. Constitutional Law Versus Constitutional Process

      In Standing Back from the Forest: Justiciability and Social Choice, I explained that standing has emerged as a logical and predictable strategy employed by Supreme Court justices responding to interest group incentives to manipulate the critical path of decisionmaking when the Supreme Court lacks a Condorcet-winning preference, or alternatively stated, when the Court's preferences are multipeaked.(11) The analysis stems from a critical insight drawn from The Misguided Renaissance of Social Choice,(12) that, as a result of the obligation of the Supreme Court - along with virtually all appellate courts - to resolve cases properly before it, the Court is unable to employ a Condorcet-producing decisional rule.(13) Instead, it employs a decisional rule that, while not Condorcet-producing, is capable of ensuring outcomes in all cases.(14) Within particular cases, the Court-along with virtually all appellate courts - employs case-by-case, rather than issue-by-issue, decisionmaking. Case-by-case decisionmaking enables the Court to resolve all cases, even those for which it lacks a Condorcet winner.(15) If the Court instead employed a Condorcet-producing rule, for example issue-by-issue decisionmaking, it would locate all available Condorcet winners, but would cycle when no Condorcet winner is present.(16)

      To understand the nature of Supreme Court voting rules, we will need to review briefly the Condorcet paradox. The paradox reveals that in a group of three or more persons, each with preferences that satisfy the condition of transitivity (referred to in social choice as rationality), the group's preferences, when aggregated, may defy rationality. Three persons with the following ordinal rankings: (1) A,B,C; (2) B,C,A; (3) C,A,B, will discover an anomaly when they try to choose their preferred option through some commonly employed voting techniques. If, for example, the group's members try to select their preferred option using unlimited pairwise contests, they will soon discover that while they prefer A to B and B to C, they simultaneously prefer C to A.(17) In the language of social choice, a branch of economics that finds its conceptual origin in the Condorcet paradox,(18) unlimited pairwise voting leads to a "cycle" when the group lacks a Condorcet-winning preference. A cycle arises when, for any proposed outcome, an alternative outcome has the support of a majority in a pairwise context.(19) Because this holds true for any proposed outcome, no outcome is stable under this voting regime.

      With some sets of preferences, the same voting procedure can lead to stable results even if there is no majority first-choice candidate. Thus, if the group's preferences are instead (1) A,B,C; (2) B,C,A; (3) C,B,A (note that only person 3's preferences have been changed), unlimited pairwise voting would produce a stable outcome, option B.(20) While option B is not the first choice of a majority of the group's members, it will defeat either of the other options in pairwise contests. Option B is referred to as the Condorcet winner.

      While social choice theorists often evaluate voting rules based upon their ability to ensure that available Condorcet winners prevail, the decisional rules of some very important collective decisionmaking bodies have evolved in a manner that thwarts the Condorcet criterion.(21) Institutions that do not have the ability to remain inert when faced with preferences that cycle employ rules that, while they do not satisfy the Condorcet criterion, ensure a collective outcome regardless of the group's preferences.(22) In The Misguided Renaissance of Social Choice, I demonstrated that the Supreme Court employs case-by-case voting, rather than issue-by-issue voting, because the former rule, while it fails to satisfy the Condorcet criterion, ensures a collective outcome in all cases.(23) In Standing Back from the Forest, I extended the analysis to demonstrate that while case-by-case decisionmaking prevents cycling in particular cases, it cannot prevent intertemporal cycling, namely cycling that occurs over time and across cases.(24) One commonly employed voting rule that prevents cycling, including intertemporal cycling, is a prohibition on reconsideration of defeated alternatives.(25) I further demonstrated that in the Supreme Court, stare decisis operates as a proscription on reconsideration of defeated alternatives that prevents intertemporal cycling.(26)

      Social choice, and specifically Arrow's Theorem, reveals a fundamental tension between five voting...