STATE STANDING'S UNCERTAIN STAKES.

• Author: Huq, Aziz Z.
• Position: Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on State Standing

INTRODUCTION 2127 I. DOMAINS OF UNCERTAINTY AND STABILITY IN STATE STANDING DOCTRINE 2131 A. State Standing as a Standing Problem 2132 B. Easy and Hard Problems in the Jurisprudence of State 2135 Standings 1. Easy Problems 2138 2. Hard Problems 2140 C. Rationalizing Hard State Standing Cases 2144 II. RECUPERATING THE STAKES OF STATE STANDING 2146 A. "Different Litigant"Effects 2147 1. The "Null Litigation Set" Risk 2147 2. The Risk of Poorer Representation 2150 B. Structural Constitutional Effects 2152 C. Incentive Effects 2155 CONCLUSION 2157 INTRODUCTION

Whether states have Article III standing is a question that has in recent years induced a puzzling and nonstandard patterning of votes amongst the Justices of the Supreme Court. It is, of course, not uncommon for that bench to be characterized by sharp ideological divides. What is unusual and symptomatic in the state standing litigation context is rather this: specific Justices seem to adopt divergent, seemingly inconsistent, positions on the same basic question of constitutional law when it is presented in different litigation matters. (1) When it comes to state standing, the Court's ideological divide is not merely acute but also inconstant and unstable.

Consider, for example, two recent cases in an evenly divided eight-member Court which was unable to reach a decision on this Article HI issue. The Court as a result demurred from a decision in both cases, albeit to divergent effect in the two matters. (2) Although we do not know the breakdown in votes in either case, I think it is reasonable to assign the "liberal" and "conservative" (3) Justices to the opposite sides of the state standing issue in these two cases based on the questions and preferences evinced in the oral arguments. (4) That is, the liberals (conservatives) sometimes embraced state standing, and sometimes uniformly rejected it. This suggests that the question of state standing does not have an obvious and unidirectional ideological valence. It rather implies that its ideological valence is unstable for individual Justices, even holding constant the bench's composition.

A dismayingly plausible interpretation of this dynamic would begin with the basic unpredictability of Article III standing doctrine and its consequent vulnerability to partisan polarization effects among the Justices in high-profile public law litigation. Where a state presses a left-leaning position, the logic goes, Justices and commentators take predictable positions pro and contra--and vice versa. This happens because the doctrine either cannot or more contingently does not impose a frictional constraint on the expression of their normative priors. The ensuing constellation of votes, and hence majority or dissenting opinions, can be predicted with some confidence if one knows which President appointed a Justice and how they would vote on the merits of a case.

Such a view would not break new ground. Law reviews and journals resound with complaints about standing doctrine's mutability (5) as well as its mismatch with attractive normative accounts of Article III ends. (6) But complaints about its unique incoherence are somewhat overstated. Some degree of instability is probably inevitable in multimember bodies such as the Supreme Court given social choice dynamics. (7) That this instability would take on familiar partisan form in cases concerning policy questions with obvious and strong partisan coloring--such as immigration law, (8) environmental law, (9) and national healthcare policy (10)--is by no stretch surprising given the larger pattern of partisan polarization among the Justices.

Still, it is not very satisfying to end the analysis with this stark "legal realist" conclusion. (11) Nor do I think it is enough to simply assume it is possible to assert some "principled" account of state standing without thinking about why the doctrine has generated these concurrent but diametrically opposed votes on similar cases. Brute resort to partisanship as an explanation is insufficient not because it lacks predictive power, or because it is somehow false. Rather, in the United States of the early twenty-first century, national partisan divides tend to track deep and consequential normative divides. (12) Resiling to partisanship to account for doctrinal difference may be accurate, (13) but it obscures far more interesting questions about how and why recondite matters of federal jurisdiction take on more readily cognized political colors. It fails to illuminate why a division of votes happens. To the extent that legal scholarship aims to map, and then plot potential pathways across, normative contestation, partisanship-based explanans can be both powerful and simultaneously unavailing for the task at hand. They beg the question of how we are to interpret ideological divisions on the Court by ousting an analysis of ideas with the brute act of taxonomy.

Nor do I think it is plausible to stipulate by fiat a single normative key to the state standing problem by appealing to text, original public meaning, or the like. There is already some air between the lexical anchors of Article III standing--the terms "case" and "controversy" in disconnected elements of the Constitution's text--and the normative motors of current standing doctrine. That doctrine has further developed largely in terms of cases lodged by private litigants; its translation to state actors is not necessarily a neat or obvious one. (14) There are hence a large number of disarticulated joints in the doctrinal armature tying constitutional meaning to its application in specific circumstances.

As a result of these gaps, theoretical ipse dixits are decidedly underwhelming. The litigated world is too fluid to be nailed down by formalist or originalist certainties. This problem undermines perhaps the most cogent alternative analytic method to the approach I take here. This approach would turn to a historical consideration of states' ability to lodge certain kinds of suits in federal courts. (15) The leading historical study in this vein, however, implicitly assumes that the background relationships of states vertically with the federal government and its own citizens, and also horizontally to other states, have been constant and stable enough to enable meaningful transhistorical comparisons. I am not sure that is right (in fact, I am pretty sure it is wrong). The need for some translation of historical doctrine to a contemporary context creates a need for normative criteria to evaluate whether the linkages between anterior doctrinal forms and constitutional norms persist or have evaporated. (16) History, in short, entails normative exegesis as much as any other modality of constitutional inquiry.

In what follows, I offer a quite modest contribution to debates on state standing. (17) I do not offer "right answers." Rather, I posit that it is useful to understand the "stakes" of state standing. By "stakes," I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting the ability of states to initiate a matter in federal courts. Why, that is, does state standing matter? An inquiry into stakes can usefully proceed stepwise. A first task is to identify the subset of state standing cases that presently elicit division among the Justices. A second task is to articulate the interesting normative consequences of narrowing or widening the Article III gauge in this contested class. Parts I and II attend respectively to these tasks.

In particular, I aim here to flesh out the multifarious character of downstream consequences plausibly related to state standing doctrine. For example, it is already a familiar claim in litigation over this Article III question that a denial of state standing will lead to an issue's nonjusticiability. My analysis suggests we should be a bit skeptical of that notion. This skepticism, in turn, helps decenter what has become a modal concern in state standing debates. Instead, it suggests the value of attending to other, less familiar institutional-design implications, such as effects on the structural Constitution and the incentives of state officials. In the end, I suggest that the latter may well be more important than any other concern.

My conclusion then draws back from the specifics of state standing to develop some more general reflections on the contents and aims of federal courts scholarship in an era of obvious and powerful partisan and ideological polarization. Put crudely, the animating worry there is whether the deepingly polarizing of American society, which the Court cannot escape, alters the way that scholars--putatively above the partisan fray--should talk about and think about the law of federal jurisdiction.

1. DOMAINS OF UNCERTAINTY AND STABILITY IN STATE STANDING DOCTRINE

   Doctrinal and scholarly debates about state standing occur against a backdrop of the reasonably stable, albeit still underspecified, doctrinal framework of general Article III standing jurisprudence. In consequence, it is useful to begin by locating state standing debates in that larger doctrinal context. I then disentangle two strands of state standing jurisprudence in terms of their stability. Some forms are relatively uncontroversial and so fixed, I suggest, while others generate sharp discord and fluidity. The second category of contested applications of state standing is the subset of greatest interest here. Having isolated that contested domain, I briefly consider two recent academic treatments of state standing to demonstrate how much remains unsettled even among scholars.

   1. State Standing as a Standing Problem

      The term "standing" emerged in the early twentieth century to describe the regulatory principle governing access to the federal courts. (18) If an analog understanding obtained in the nineteenth century, it took more uncertain and blurred form. Standing's precursors drew on "general principles of...