On Monday, relative standing, or the idea that standing sometimes turns on who is the best plaintiff among the available options, made a brief but noteworthy appearance during oral argument at the Supreme Court.
The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, which primarily concerns an Elections Clause merits issue, but also raises a standing question. At the start of his argument, Mr. Eric Feigin of the US Solicitor General’s Office asserted that the Arizona State Legislature wasn’t affected in a way that created standing in federal court. This exchange followed:
JUSTICE GINSBURG: Are you saying that … there’s no nobody would have standing, because it seems the legislature, if anyone, has standing, and they are, as an institution, affected.
MR. FEIGIN: I think there may be people who are much more directly affected, such as people who might be put into one district versus another. If someone were to bring a Voting Rights Act challenge and have — end up with an injury to bring that claim, they could ….
JUSTICE KENNEDY: Is it part of our jurisprudence that if it’s likely that another person is more directly affected, that that goes into the balance and we say, Well, the legislature doesn’t have standing because there are other people out there that are more directly affected? Do we say this in our cases?
MR. FEIGIN: No, Your Honor. And I –I think, in fact, you say quite the opposite, which is that even if it would mean no one would have standing to sue, that’s not a reason to find standing. And we think the legislature simply doesn’t have standing to sue here regardless of whether anyone else does.
Feigin’s answers well represent the government perspective on this issue. Because it is frequently sued for alleged violations of public law, the United States has a strong institutional interest in adopting a strict view of standing doctrine—even if that means that some violations don’t create standing and so can occur indefinitely without federal-court intervention. However, many judges and justices clearly care about whether standing rules preclude federal litigation. As a result, government attorneys–including, in the passage above, Mr. Feigin–routinely come prepared to argue that denying standing to today’s plaintiff won’t preclude other people’s standing tomorrow. In fact, Feigin went even further, arguing that other potential plaintiffs were “much more directly affected.” That’s relative reasoning.
But do Feigin’s inevitably brief answers fully capture the state of the law? I don’t think so. Let me give a somewhat wordier assessment of the legal landscape.
To my mind, there’s ample evidence that relative standing plays a significant role in the cases. In Powers v. Ohio, for example, Justice Kennedy’s opinion for the Court explained that the normal rule against third-party standing can be set aside because “in certain circumstances ‘the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.’” Similar reasoning often pops up in Article III standing cases. For instance, Diamond v. Charles succinctly explained that Article III standing “reflects a due regard for the autonomy of those most likely to be affected by a judicial decision.” (If you want more examples, check out my article “Relative Standing,” which also tries to provide a normative defense of relative standing.)
True, some cases do suggest that certain legal violations leave nobody with standing. For example, Clapper v. Amnesty International, USA posited: “'[T]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’” But the Court immediately went on to argue—at some length, and based on arguments presented by the Solicitor General—that there were in fact alternative plaintiffs, some of whom had a “a stronger evidentiary basis for establishing standing than do respondents in the present case.” Based on that finding, the Court emphasized that “our holding today by no means insulates [the challenged law] from judicial review.” Clapper‘s recourse to relativity suggests that this area of doctrine is unstable–as evidenced by relative standing’s frequent appearances during oral argument.
Relative standing may not ultimately play a big role in the Arizona case. But it might. And with Justices directly asking about it, other opportunities to confront the issue are bound to arise.
First posted on Prawfs.