Among the many wonky constitutional-law doctrines that have become headline news in the Trump era, “standing” has, of late, been the most, erm, outstanding. In two high-profile cases—Texas Attorney General Paxton’s lawsuit seeking to cancel millions of votes in four other states and the challenge to the Trump administration’s ploy to exclude non-citizens from the census count—the Supreme Court tossed out the suits on the grounds that the plaintiffs lacked standing to sue. The question for the newly minted 6-3 conservative majority, poised to review challenges to the policies of incoming President-elect Joe Biden, is whether they are willing to put politics aside for the sake of fidelity to a doctrine that is core to their conservative sensibility, and particularly near and dear to the heart of an icon on the right, the late Justice Antonin Scalia.
The word “standing” is nowhere in the Constitution, but it’s a critical means by which the federal courts confine the scope of the kinds of cases that they hear. In theory, courts are charged exclusively with calling balls and strikes in disputes between discrete parties—they are not positioned to “legislate from the bench,” and they cannot give general advice on the law if it would have no actual impact on a concrete injury of an actual litigant.
As a consequence, lawsuits that basically aim to get courts to do the jobs of politicians will often get tossed out on standing grounds, a concept that derives from Article III’s restriction of federal court jurisdiction to “cases” or “controversies.” In general terms, a court case arises when one party is injured by another party. The court is invoked to make the injured party whole. This is unlike legislation, which makes rules for everyone prospectively—not for any particular party to remedy a particular injury that occurred in the past.
For standing doctrine, identification of the concrete injury is crucial. If a plaintiff comes to court as a “citizen of the U.S.” complaining about the Trump administration’s general malfeasance, the lawsuit will be tossed. That plaintiff has no special injury—no “broken arm”— that distinguishes her from the rest of the voting populace. Her remedy lies, if anywhere, in the legislature or at the ballot box in the next presidential election. As explained by then-D.C. Circuit Judge Scalia in a 1983 law review article (somewhat famous among legal academics), “the requirement of distinctive injury not shared by the entire body politic” is a cornerstone of the “original understanding” of the separation of powers.
For lawyers who think a lot about federal court jurisdiction, the Supreme Court’s brief decision in Texas v. Pennsylvania was no surprise: “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Recall that Texas was complaining about Pennsylvania’s mail-in voting procedures, among other things. But what did that have to do with Texas voters? Nothing. There were no “broken arms” in Texas caused by other states’ election systems. So no standing to sue. And no jurisdiction in the federal courts under Article III of the Constitution. Case dismissed.
The census case was trickier, which gets to an uncomfortable reality about standing doctrine: It’s squishy and subjective, essentially enabling federal judges to kill cases on the grounds that they don’t have the power to hear them in the first place. (I wrote on this at length in a 2009 law review article.) Often, the arguments for and against standing can go either way.
The census case, Trump v. New York, is an example. In July, President Trump issued a memorandum to the secretary of commerce announcing a policy of excluding “from the apportionment base aliens who are not in a lawful immigration status.” This was important, because census numbers are used to determine how many members of the House of Representative are allotted to each state. If states with high numbers of undocumented individuals cannot count those people, they get fewer members of Congress for the next 10 years—and perhaps beyond. Census numbers also determine federal dollars for infrastructure, schools, and social programs.
The argument made by New York and other plaintiffs was that, unlike the Texas attorney general, they were actually harmed by the memorandum because the census process is happening right now, and if their populations are undercounted in violation of the Constitution (which refers to “whole persons,” not just citizens), they have a broken arm that needs a remedy through the courts. The 6-3 conservative majority disagreed, reasoning that the “census response period was already over”—so if non-citizens didn’t participate, it’s too late to remedy the problem. As for the apportionment of members of Congress and federal funding, the majority reasoned that “the President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base,” but included caveat language “to the extent practicable” and “to the extent feasible.” The injury, therefore, was conjectural. The Court basically told the plaintiffs to stay tuned and come back if their gripe ripens into something more significant.
Arguably, with a Biden administration on the horizon, the majority was correct to punt this one on the theory that the problem will just go away when a revised presidential memorandum inevitably undoes the Trumpian one. For the dissenting justices, that wasn’t up to the Court, which has—according to its own precedent—a “virtually unflagging obligation . . . to exercise the jurisdiction” it’s been given.
But here again is the rub with standing: Whether an injury is concrete enough is subjective and amenable to a variety of interpretations and, yes, unarticulated policy preferences. Thus, for example, the Court held in 2007 that the Commonwealth of Massachusetts had standing to complain about the Environmental Protection Agency’s refusal to regulate air pollutant emissions from new motor vehicles on the theory that global warming affects the state through rising sea levels along its coast, changes in natural ecosystems, the spread of disease, and the ferocity of weather events. But the other plaintiffs—including 19 private organizations devoted to environmental and other public interest causes—did not have standing. Huh?
Chief Justice Roberts wrote a powerful dissent, in which Justices Scalia, Thomas, and Alito joined. “Global warming,” he wrote, “may be a ‘crisis,’ even ‘the most pressing environmental problem of our time,’” one that “may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it.” But, he urged, “redress of grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts.”
Chief Justice Roberts is probably correct—courts should err on the side of staying out of disputes that belong to politicians who, unlike judges with life tenure, can be held accountable at the polls for making decisions at odds with the voting public. The question for the new Supreme Court is whether, with Biden at the helm, conservatives will be equally deferential to a president whose plans for restoring public trust in elected government were endorsed by a 7 million-vote margin last month, or whether they will discern “injuries” that are sufficient to enable the Court to second-guess this administration’s work.