Standing doctrine has been in flux in recent decades, and one aspect of that change has to do with the rise of the tripartite constitutional standing test that is now most closely associated with Lujan v. Defenders of Wildlife (1992). This post outlines the rise of the tripartite test over the last half-century and begins to explore its implications.
Let’s somewhat arbitrarily start about fifty years ago, with the Court’s widely influential opinion in Baker v. Carr (1962). Here is Baker’s key passage on standing:
Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.
This passage loomed large for a decade or two, influencing such prominent standing cases as Flast v. Cohen (1968) and in Sierra Club v. Morton (1972). Baker’s formulation advances a fairly flexible standard. It identifies a vague trait (“a personal stake”) and expressly links that trait to an abstract functional value (“illumination”). To be sure, there are many considerations that this standard doesn’t direct judges to consider. But it still invites recourse to a fairly loosely defined cluster of first-principles.
Baker’s paradigmatic standard can be contrasted with the corresponding passage in Allen v. Wright (1984). Amidst a paragraphs-long discussion of precedent and constitutional principle, Allen included a crisp sentence: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” This is a step away from Baker’s standard-like language regarding functional purposes and toward a rule-like set of absolute demands that must be satisfied in every case, regardless of underlying goals. Yet Allen’s statement is also multifarious as compared with Baker’s. While the “personal injury” requirement in itself seems somewhat more specific than Baker’s reference to “a personal stake,” Allen added two potentially distinct concepts: whether the injury is “fairly traceable” and “likely to be redressed.”
Now consider Lujan. Written by Justice Scalia, that most famous devotee of rule-like law, Lujan synthesized prior standing precedent into a compact passage with an explicitly tripartite enumeration, two demarcated sub-points, and an absolutist lead sentence. Here it is, with some cites and alterations omitted:
The irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
This was a statement meant to be quoted and cited—and it has been. Here is a quick metric of this passage’s influence. Chevron USA v. Natural Resources Defense Counsel (1984) is widely recognized as among the most influential Supreme Court cases in recent decades. Westlaw reports that Chevron has been cited about 69,000 times, and the Westlaw headnote for Chevron’s famous two-part deference test has been cited about 5,600 times. By comparison, Westlaw reports that Lujan has been cited about 50,000 times, and the headnote for the passage quoted above has been cited a staggering 7,400 times. And that’s despite the fact that Chevron has been collecting cites for eight years longer than Lujan.
What has been the upshot of standing’s evolution from Baker to Lujan?
One possible effect is that standing has become a more potent doctrine, particularly for purposes of invalidating statutes. Lujan is arguably the first case in which the Court rejected a congressional effort to confer standing. After Lujan, the Court did so again in Raines v. Byrd (1997). And, a couple years ago, Hollingsworth v. Perry (2013) found constitutionally inadequate California’s effort to confer standing on initiative proponents. Few can doubt that standing is now a serious (if intermittent) check on legislative efforts to nudge private parties into federal court. That kind of check is made more likely by the adoption of more rule-like legal tests. As Justice Scalia has written in other separation-of-powers contexts: “low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Lujan offers a test with mettle.
Potentially consistent with the foregoing, standing’s Lujan-ification may have caused standing to become—if it’s possible—even more malleable. Normally, rules are thought to confer less discretion than standards, and the move from Baker to Allen to Lujan did incrementally move closer toward rule-ness. But these changes came accompanied by the inclusion of numerous values under the standing rubric. Three constitutional rules is a pretty substantial number, and Lujan actually includes at least five, since it casts the “injury” requirement as having two distinct sub-requirements: the injury in fact must be (a) concrete and particular, as well as (b) actual or imminent. Particularly because these rules are still fairly indeterminate, as well as interrelated, Lujan turns out to accommodate lots of different outcomes. For example, the Court reproduced the entire Lujan test in Friends of the Earth v. Laidlaw Environmental Services (2000)—before finding standing in a context that left Justice Scalia fuming in dissent.
Finally, standing’s Lujan-ification may have suppressed considerations that cases like Baker properly felt to be essential, or at least valuable, to standing’s traditional and pragmatic purposes. The 1970s and 80s saw a large number of values swirling around in standing cases. In Allen, you’ll remember, the Court offered a pithy statement of the three (then not enumerated) standing requirements, but it also seriously discussed a number of other issues, including remedial issues pertaining to equity. Allen was also fairly explicit—more than once—that the standing requisites “cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.” Greater clarity would come with time, thanks to “developing case law.” Allen thus leaves the strong impression that standing doctrine was still evolving. Lujan displayed no such uncertainty—perhaps in part due to Justice Scalia’s temperament and the Court’s muscular disposition partially invalidating a federal law. But in eliding both Allen’s tentativeness and its consideration of a broader range of issues, Lujan may have let valuable ideas slip out of the doctrine, even as it crystalized that doctrine in a way that rendered it more fixed. Underlining this possibility, the Court sometimes recites the Lujan test before introducing brand new considerations into the standing analysis.
In later posts, I’ll explore some ideas and values that—for better or worse—standing’s Lujan-ification may have suppressed.
The above originally posted on Prawfs.