Last week, I posted on Hobby Lobby and its effort to grapple with older cases that had assumed federal jurisdiction, contrary to the now-settled rule established in Steel Co. Some comments about the post reminded me that Hobby Lobby wasn’t the only decision last year that dealt with assumed jurisdiction: Lexmark did as well — but you wouldn’t know it from reading the Court’s unanimous decision. On its face, Lexmark simply re-characterized the doctrine of “statutory standing” as a form of merits inquiry. But, in doing so, Lexmark silently demolished one of the foundations underlying Steel Co.
This episode offers a rich example of how legal revolutions can be achieved, not through grand decisions overruling precedent, but rather through gradual re-characterizations. This episode also has a discrete doctrinal payout: after Lexmark, it appears that federal courts must now assure themselves of jurisdiction before turning to the doctrine formerly known as statutory standing.
To simplify, Lexmark involved a Lanham Act claim that had been challenged based on a doctrine variously known as “statutory standing,” “prudential standing,” or “zone of interest” standing. The basic idea was that only certain types of plaintiffs could bring suit under certain statutes. This sounds a lot like the merits question of whether the plaintiff has a (statutory) cause of action. And that’s exactly what the Court, per Justice Scalia, unanimously held in Lexmark. Upon arriving at this straightforward conclusion, the Court dropped a footnote that cited Steel Co. and acknowledged: “We have on occasion referred to this inquiry as ‘statutory standing’ and treated it as effectively jurisdictional.” Whoa–what was that, again? The Court has “on occasion” treated “this inquiry”–that is, something that is fairly obviously a merits inquiry–“as effectively jurisdictional”? And in Steel Co., an iconic opinion by Justice Scalia, no less? How could that be?
Here is one stylized way to explain what happened, focusing on three time periods roughly 20 years apart from one another.
1. It’s the 1970s, and the law of justiciability is relatively flexible, prudential, and lax. Building on earlier visionary opinions by Chief Justice Warren, the Court sometimes assumes jurisdiction before denying claims on the merits. This isn’t an everyday practice, but it is fairly regular and occurs in a variety of contexts. Of particular note, the Court sometimes finds that plaintiffs have no cause of action before ruling on whether the plaintiffs have Article III standing. Examples include Gladstone, Realtors v. Village of Bellwood (1979).
2. A couple decades later, it’s the 1990s, and Justice Scalia is gaining momentum in making the law of justiciability more rule-like, formal, and strict. A case arises in which the Court has a chance to opine on the propriety of assuming jurisdiction, and Scalia naturally wants to say that the practice is impermissible, period. But the old precedents are a real problem. Is the Court going to say that all those venerable cases have to be overruled? That sounds pretty revolutionary. This is the problem of adverse precedent–a classic lawyer’s challenge–and Scalia is nothing if not a great lawyer.
To set aside the problematic cases, Scalia proposes that many of them involved something called “statutory standing,” which is a lot like the merits, except that it’s jurisdictional and so can be resolved before other jurisdictional requirements, such as Article III standing. Does this category make sense? Justice Stevens certainly doesn’t think so, and maybe Scalia doesn’t either. In fact, Scalia says that statutory standing and the merits “often overlap,” “are closely connected,” and “are sometimes identical, so that it would be exceedingly artificial to draw a distinction between the two.” But the category does the work required. The Court embraces statutory standing, distinguishes the old cases, and the rule against assuming jurisdiction becomes law. The case is called Steel Co. (1998).
3. Now we’ve reached the 2010s, and the law of justiciability is much more like Justice Scalia’s vision than Chief Justice Warren’s. Scalia is less a revolutionary than a supervisor. The Court gets a case that involves “statutory standing,” as well as those old precedents that Steel Co. grandfathered in. The old cases suddenly seem useless and badly out of place. Despite the first half of its name, “statutory standing” is capable of being resolved before Article III jurisdiction. But, despite the other half of its name, “statutory standing” looks a lot like the merits. This beast is neither fish nor fowl. It’s time to ditch “statutory standing” as, well, what it always was: the merits. The Court does so, in Lexmark.
So Lexmark has just knocked out one of Steel Co.‘s critical doctrinal premises–the only way that Steel Co. had distinguished a bunch of cases aggressively cited by Justice Stevens’s separate opinion. Does that mean that Steel Co. is no more, and it’s now OK to assume jurisdiction on the way to the merits, like Chief Justice Warren used to do? No. In fact, that point doesn’t even come up in Lexmark, for the rule against assuming jurisdiction is now carved in every federal jurisdiction casebook and in the mind of every federal judge. The upshot is that the once-useful category of “statutory standing” simply evaporates. Lexmark purported to correct an error in Steel Co., but it actually vindicated and extended the theory of Steel Co. by finally admitting that one of its built-in limitations never really made sense.
With the rule against assuming jurisdiction firmly entrenched, it’s (presumably!) only a matter of time before the Court squarely rejects the old precedents as incorrect: since “statutory standing” is now viewed as part of the merits, it can’t be done before Article III jurisdiction. The Court was unwilling to overrule the old cases in Steel Co., but now it can do so as an afterthought.
The rule against assuming jurisdiction is on the verge of becoming a little more absolute. The doctrinal revolution is nearly complete.