Standing still in the Roberts Court.

• Author: Adler, Jonathan H.
• Position: Law Review Symposium 2009

In 2007, The New York Times reported "limiting the ability of plaintiffs to bring or appeal lawsuits" had emerged as an early "theme" of the Roberts Court. (1) The Wall Street Journal concurred, reporting "the biggest change under Chief Justice Roberts might not involve who wins on the merits" but "who gets through the courthouse door in the first place." (2) Reviewing some of the Court's initial decisions, Dean Erwin Chemerinsky commented that "the effect of many of the Court's decisions was to close the courthouse doors." (3) More colorfully, Professor Judith Resnick labeled the October 2006 term--the first full term since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito--as "'the year they closed the courts.'" (4)

It is admittedly too soon to reach any definitive conclusions about the Roberts Court. The current Justices have yet to sit together for four full terms. An early consensus is emerging nonetheless that one effect of the Roberts Court is to make it more difficult for prospective plaintiffs to have their day in federal court.

In some areas the Roberts Court does appear to have reduced access to the courts, as the commentators claim. Through its first three terms the Court accepted arguments that federal law preempts state tort litigation almost unerringly. (5) The Court interpreted relevant statutory provisions and statutes of limitations narrowly to preclude litigation (6) and declined requests to authorize previously undiscovered causes of action. (7) As Professor Gene Nichol observed, this is a court that interprets statutory limits on litigation strictly and is reluctant to recognize new implied rights of action or adopt new, broadened interpretations of statutory bases for suits against private firms. (8) Yet the Court has not uniformly ruled against access to federal courts, having opened the door to climate change litigation (9) and habeas claims by Guantanamo detainees. (10)

Those areas in which the Court has limited citizen access to courts have something in common: a statutory foundation. Where the Court has erected or enforced barriers to private litigants seeking access to federal courts, it has grounded its decisions in the relevant federal statutes. The decisions in these cases all turn on statutory language and legislative intent. (11) As a consequence, nearly any of these decisions could be readily overturned by legislative action--and some may well be. Among its first actions in 2009, Congress enacted legislation to overturn the Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. (12) that barred Lilly Ledbetter's pay discrimination claim. Additional legislation overturning other decisions limiting private litigation, including the Court's holding that federal law preempts state law tort claims against medical device manufacturers in Riegel v. Medtronic, Inc., (13) may follow. (14)

Congress does not retain the same ability to modify the Court's holdings in all "access to justice"-type cases. Specifically, Congress has limited ability to second-guess judicial decisions concerning Article HI standing. In the standing context, judicial limits on the ability of private parties to bring suit are often a matter of constitutional law. (15) While Congress retains some ability to alter the bounds of standing on the margin, this authority is limited because the Article HI standing requirement is, at its core, a constitutional rule. Congress may tinker on the edges, but it cannot confer standing on parties that fail to meet the underlying constitutional requirements in a given case.

Because standing decisions are more insulated from legislative revision than other sorts of "access to justice" cases, focusing on the Roberts Court's approach to standing may allow us to refine our assessment of the Roberts Court. Specifically, it may illuminate whether the underlying "theme" of the Court's work in this area is limiting access to the federal courts, or something else. For example, if the Court construes statutory jurisdictional provisions quite narrowly, but does not alter constitutional bases for jurisdiction, the Court is less "shutting the courthouse door" than it is deferring to Congress's role as the judiciary's doorman. Insofar as the Court has not restricted Article III standing, this suggests that the Court is less hostile to "access to the courts" than it is reluctant to define the contours of such access itself, leaving to Congress the job of defining and delimiting citizen rights to sue.

This Article offers a preliminary look at the standing jurisprudence of the Roberts Court. This is obviously a work in progress, as the Roberts Court presents an evolving subject of study. At this point, however, the Roberts Court has yet to tighten the requirements of Article III standing. To the contrary, insofar as the Roberts Court has altered the law of standing, it has made it easier for at least some litigants to pursue their claims in federal court. The Court's decisions denying standing have largely reaffirmed prior holdings, warts and all. By comparison, some of the Court's decisions on standing, most notably Massachusetts v. EPA (16) and, to a lesser extent, Sprint Communications Co. v. APCC Services Inc., (17) have lowered the standing bar, perhaps quite significantly. Whatever else has transpired with regard to citizen "access to federal courts" in the first four years of the Roberts Court, standing for citizens to invoke the jurisdiction of federal courts remains in place.

1. STANDING IN THE COURT

   The constitutional doctrine of standing seeks to determine whether an individual litigant has a sufficient stake in the outcome of a particular legal dispute so as to create a "case" or "controversy" subject to resolution by an Article III court. As colorfully explained by then-Judge Antonin Scalia, the standing inquiry asks of the party seeking to invoke the jurisdiction of a federal court "What's it to you?" (18)

   The specific requirements of Article III standing, as articulated by the Supreme Court, are quite familiar to any student of federal courts. As the Court explained in Lujan v. Defenders of Wildlife, (19) and has repeated many times since, (20) the Irreducible constitutional minimum of standing" has three parts. (21) First, the "plaintiff must have suffered an 'injury in fact,'" that is both "actual or imminent" and "concrete and particularized." (22) Second, there must be a "causal connection between the injury and the conduct complained of." (23) Third, there must be a sufficient likelihood that the "the injury will be 'redressed by a favorable decision." (24) Whether or not these requirements derive from a proper interpretation of the text of Article III, the requirement that a plaintiff have standing in order for there to be a question "of a Judiciary nature" (25) that can be resolved in federal court is cemented into the foundation of federal constitutional law. While there remains a vibrant academic debate over the textual and historical provenance of the contemporary standing doctrine, (26) the basic contours of Article III standing find near universal assent on the bench.

   While there is substantial agreement in the courts over the formal requirements of Article III standing--injury, causation and redressability--there is substantial disagreement over how these requirements should be applied. By most accounts Lujan adopted a particularly narrow and demanding view of standing's requirements--a "slash-and-burn expedition through the law of environmental standing" according to one justice. (27) Subsequent decisions, such as Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (28) and Federal Election Commission v. Akins (29) adopted more lenient standards, recognizing less substantial or concrete injuries than Lujan suggested would be required. As a consequence, the law of standing sees frequent doctrinal shifts that alter the legal terrain without altering the underlying fundamentals.

   There are several justifications for the standing requirement, such as the need to ensure sufficient adversity between the parties (30) and vindicate individual rights. (31) The Supreme Court's standing jurisprudence over the past several decades, however, has grounded the standing requirement in the separation of powers. As Justice Sandra Day O'Connor stated in Allen v. Wright, (32) "the law of Art. III standing is built on a single basic idea--the idea of separation of powers" (33)--and this idea helps define the role of judiciary within the constitutional framework. (34) Indeed, the Court has gone so far as to declare that "'[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." (35)

   Whether or not eighteenth and early nineteenth century jurists recognized an implicit standing requirement in Article III, the roots of standing (and other contemporary justiciability doctrines) can be unearthed in the founding period. "The province of the court is, solely, to decide on the rights of individuals," Chief Justice John Marshall noted in Marbury v. Madison. (36) Such cases stand in contrast to those that are "political" in that "[t]hey respect the nation, not individual rights" and are entrusted to the elected branches. (37) Where the rights of individuals are at stake, the judiciary is within its element and properly exercises the authority of judicial review, even if that means second-guessing or over-ruling the actions of a coordinate branch. Yet when individual rights are not at stake, constitutional questions are properly left to the political branches, each of which has an independent obligation to uphold and enforce the Constitution.

   Notably, this separation of powers justification was explicitly embraced by two of the current Justices--Chief Justice John Roberts and Associate Justice...