Why Standing Matters

• Publication year: 2023

Why Standing Matters

Jeffrey G. Casurella

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Why Standing Matters

Jeffrey G. Casurella^*

I. Introduction

On December 12, 2020, Donald Trump tweeted:

The Supreme Court had ZERO interest in the merits of the greatest voter fraud ever perpetrated on the United States of America. All they were interested in is "standing[,]" which makes it very difficult for the President to present a case on the merits. 75,000,000 votes!¹

President Trump's outburst du jour came on the heels of a Supreme Court of the United States case filed in the wake of the 2020 presidential election.² That case was brought by the State of Texas against four defendants—the Commonwealth of Pennsylvania and the States of Georgia, Michigan, and Wisconsin—and alleged that the defendants acted contrary to the manner in which their legislatures appointed electors³ by virtue of Article II, section 1, clause 2 of the United States Constitution.⁴ In a one-paragraph decision, the Court denied the State of

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Texas the ability to press their case against any of the defendants, concluding that "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections."⁵ So ended the last, best legal challenge for President Trump to overturn the 2020 presidential election.

But then the repercussions began. As everyone remembers, disputes over the 2020 presidential election took to the streets of Washington D.C. with protests, property destruction, and a breach of the United States Capitol building.⁶ That led to President Trump's second impeachment, various investigations, federal prosecutions, and a convening of the United States House of Representatives's Select Committee to Investigate the January 6th Attack on the United States Capitol.⁷ Is it conceivable that this seditious behavior was due in part to the Court's dismissal of the State of Texas's lawsuit because of . . . (drum roll) . . . standing? I am sure this will be argued and debated for years.

Nevertheless, and despite President Trump's sour grapes over the 2020 presidential contest, I say that the Supreme Court of the United States should care about standing—even when a presidential election is at stake. It is a doctrine that does matter, and it is very important. This is because "the law of Art. III standing is built on a single basic idea—the idea of separation of powers."⁸ Judge Wisdom of the United States Court of Appeals for the Fifth Circuit commented upon the importance of the separation of powers:

If there is one aspect of the doctrine of Separation of Powers that the Founding Fathers agreed upon, it is the principle, as Montesquieu stated it: "To prevent the abuse of power, it is necessary that by the very disposition of things, power should be a check to power."⁹

So, when a standing issue becomes front and center in an important case, it is not just the substantive case that is important; it is also the proper and orderly functioning of our government. Texas v.

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Pennsylvania¹⁰ reflects these values: the Supreme Court of the United States held the line of what it would hear.¹¹ And at the center of it all was the judicial doctrine of standing.¹²

That is the primary reason I am authoring this Article. I want readers to know and understand this doctrine. It is important for readers to know the history behind standing; the philosophical underpinnings; the differences between constitutional standing and prudential standing (and why we have these differences); and most importantly, the development of case law in the last thirty years as it pertains to Article III standing. This Article is a refresher course of sorts, and it might have been titled "The Doctrine of Standing for Dummies."

The focus of this Article is threefold. First is a discussion of the foundation and history of federal judicial standing. This is a doctrine that developed not as a natural progression of the law, but rather, in fits and starts. That reality is reflected in standing's overall development. Second is a discussion of justiciability. This includes the philosophical underpinnings of the standing doctrine in a proper context. And third is a deep dive into Article III standing and the current state of affairs over the last thirty years. The doctrine of standing was retooled in the 1990s, and lately there has been some momentum building to tighten standing requirements in some of the trickier cases. A brief conclusion follows.

II. The Foundations of Standing

A. What is Standing?

Standing originates from the common law, and it is derived from the Latin expression locus standi which means "place of standing."¹³ If one were to look up "standing" in Black's Law Dictionary, one might be surprised to find its definition as "[a] party's right to make a legal claim or seek judicial enforcement of a duty or right."¹⁴ But in a more familiar

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sense, then-Judge Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit colloquially phrased it this way: "What's it to you?"¹⁵

There are two types of standing doctrines. Article III standing, which is derived from Article III, section 2 of the United States Constitution,¹⁶ requires a plaintiff at a minimum to "demonstrate that he has suffered 'injury in fact,' that the injury is 'fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision."¹⁷ Article III standing generates the most discussion by the courts, and so it will too in this Article. Prudential standing is the second type of standing.¹⁸ It is derived from the courts' own authority to exercise self-restraint whether to hear and decide matters otherwise within the courts' Article III jurisdiction.¹⁹ Said differently, it is a way "to bar from federal court those parties who are ill-suited to litigate the claims they assert."²⁰

Because Article III considerations of standing are jurisdictional and usually presented in a motion to dismiss at the beginning of a case, merits-based decisions on the gravamen of the claim are rarely, if ever, considered. Focus is on whether the injury or the threat of injury to the party seeking relief is actual and imminent and not conjectural or hypothetical.²¹ That necessarily would exclude other legal questions commonly found in a motion to dismiss such as whether a plaintiff pleaded "enough facts to state a claim to relief that is plausible on its face."²² Hence, Article III standing issues, because they are jurisdictional, are frontloaded at the inception of the litigation via

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Federal Rule of Civil Procedure 12(b)(1),²³ which furthers the goal to minimize the full bore of expensive discovery and extensive litigation.²⁴ This is not necessarily so with prudential standing, which the courts have treated as a "merits" based issue to be resolved by Rule 12(b)(6).²⁵

B. The Early Historical Development of Constitutional Standing

The concept of standing has been around for a long time.²⁶ In fact, it is a very old concept. In ancient and medieval societies, the litmus test for standing typically emanated from one's status or position in a community. Standing, therefore, was based on who could not bring a claim or cause of action and not necessarily about the actual harm itself. Slaves, minors, married women, clerics, excommunicates, persons who were unable to speak, the mentally ill, perjurers, and enemies of the state, among others, were unable to use the Courts to further their own legal interests.²⁷

But in the United States, after the United States Constitution's ratification in 1788, a paradigm shift occurred. The Constitution was now in play, and this reality had a deep impact on standing issues before the federal courts. Instead of inquiring about a person's proper status to bring a claim, the Supreme Court of the United States instead developed a constitutional framework, albeit spasmodically, to separate, and consequently confine, the powers of each of the three branches. This was done through the decisions of the Supreme Court of the United States, and as this Article discusses below, it essentially built a virtual fence

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around each of the three branches consistent with the checks and balances contained within the Constitution. Promotion of Article III standing principles would become a major tool in this effort. Scholars have since argued that our modern-day comprehension of standing is a creation of twentieth century judge-made law and not from a long pedigree that was shaped and formed from venerable legal texts like Blackstone's Commentaries.²⁸

The U.S. Constitution itself contains no standing clause explicitly. Instead, the standing doctrine was judicially created and emerged "from Article Ill's statement that '[t]he judicial Power shall extend' to nine specific categories of 'Cases'—for instance, those 'arising under . . . the Laws of the United States'—and 'Controversies'—for instance, those 'between citizens of different States.'"²⁹ This has been largely accomplished by federal courts which have knitted together a number of different standing concepts into a patchwork quilt.³⁰ But this patchwork is not a model of clarity; it is somewhat untidy, and its widespread reach can be somewhat sprawling.³¹

What was considered the groundwork for proper Article III standing in the nineteenth century was very different than in the twentieth century and even the twenty-first century. In the nineteenth century, standing was considered absent, and the claim nonjusticiable, when

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either the "rights of persons or property" were not present.³² Then, in the salad days of the twentieth century, the plaintiff had to "show an interest in the suit personal to himself."³³ The concept was still very green. The current-day model was honed from the writings of Justice Brandeis and Justice Frankfurter,³⁴ but still, the Supreme Court of the United States could not winnow down a workable framework until the...