What ingredients come to mind when you think of cases before the Supreme Court? One might opine controversial issues or high stakes litigation. At a case level one might say circuit splits or elite attorneys. Still, there are more elementary components of litigation mentioned in Article III and they start with a case or controversy.  Central to this concept is standing – that a plaintiff suffered an injury caused by the defendant that courts can redress.  The Supreme Court examined and clarified the standing doctrine more this past term than in other recent terms. This article looks at the cases where the Court clarified this doctrine and why it did so.  It also breaks down how we can think about organizing these cases and presents views about how cases from this past term fit into the standing paradigm that the Roberts Court has already set in motion.

Why is this important? [An Example]

The Court raises standing concerns for a variety of reasons. It can be to explain why the justices decides to rule or not to rule on the merits of a particular case, as well as to clarify why the Court may or may not be willing to hear a case in the future. As Professor Taylor Dalton and I argue in an upcoming paper, it also may have to do with the justices’ strategic decision making.

Standing related issues tend to be examined at the beginning of majority opinions. For instance, in the introductory section of the 2018 decision in Gil v. Whitford, Chief Justice Roberts wrote,

“…a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has “a personal stake in the outcome…” distinct from a “generally available grievance about government…” That threshold requirement “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” Hollingsworth v. Perry, 570 U.S. 693, 700, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013).”

Roberts explained the main facts of the case at the outset of the opinion:

“The State of Wisconsin, like most other States, entrusts to its legislature the periodic task of redrawing the boundaries of the State’s legislative districts. A group of Wisconsin Democratic voters filed a complaint in the District Court, alleging that the legislature carried out this task with an eye to diminishing the ability of Wisconsin Democrats to convert Democratic votes into Democratic seats in the legislature. The plaintiffs asserted that, in so doing, the legislature had infringed their rights under the First and Fourteenth Amendments.”

The argument against plaintiff standing in the case was that “…[they] lacked standing to challenge the constitutionality of Act 43 [the new districting plan] as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative districts in which they vote.”

At the end of the opinion Roberts concluded, “[i]t is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

In this example as well as in others, without standing there is nothing for the Court to decide. The presumed “case” was not actually based on an adjudicable set of facts.

This gatekeeping doctrine has significant implications for potential litigators as it sets a threshold for cases to make their way through the court system.  These threshold issues are only examined in a portion of Supreme Court cases so sometimes these important pieces are taken for granted.  In cases like Gil v. Whitford though these aspects of a case make all the difference. In other similar instances when standing was present but dissolves so there is no longer an issue for the Court to resolve, the justices may dismiss a case as moot.

Why now?

The Court makes it near impossible to ascertain specific rationales for the justices’ internal decision making. The only time we have a strong sense of which justices voted to hear arguments in a given case is when we have justices dissenting from denial of cert. Even then, justices could vote against cert and choose not to write a dissent or sign onto a written one.

There are a few dimensions related to current Supreme Court decisions that make this an apt time for the justices to deal with more cases related to standing. The first reason has to do with the Court’s ever-shrinking merits docket.  While the justices heard in the range of 60 arguments in each of the last several terms, they heard about 100 more arguments per term only a few decades earlier.

While we can’t pinpoint an exact reason for this dramatic downturn in cases argued, some likely has to do with Congress moving near all of the Court’s cases to the justices’ discretionary docket with the Supreme Court Selections Act of 1988.  The fact that the docket declined so much after allowing the justices more say over the cases it hears serves to highlight that the justices would rather on the balance hear fewer cases. By delineating more of the contours of standing and making the doctrine of standing more precise, the justices may hope to clarify reasons why they won’t hear specific cases at a point in time before such cases are even brought to the Court.

Relatedly, the justices may be shaping what they want to see in cert petitions. If some petitions are poorly focused on standing issues (from the justices’ perspectives) then clarification from the justices not only points out cases that should not be filed, but also how petitions could be better worded and organized so that such petitions would provide the correct amount of focus on threshold related concerns.

A last reason which is related to my paper co-authored by Professor Dalton has to do with intracourt strategy.  Ruling on standing presents a very narrow way to tackle a subject relative to dealing with the substantive merits of cases. Now in a certain subset of cases the Court is actually focused on standing or related doctrines as substantive matters in cases, but in other instances standing doctrines allow the justices to minimize the justices’ involvement in the movement of law.

Although not related to standing, this is somewhat similar to the justices’ decision in Masterpiece Cakeshop.  Certain justices like Justice Thomas (as evident from his concurrence) obviously wanted to deal with the substantive issues in the case, others were happy to deal with procedural issues which were the main factors in the decision.  Focusing on such procedure, Justice Kennedy with his majority opinion was able to pull two of the liberal justices into the majority along with all of the conservative members of the Court.  As we saw last term, the more conservative majority was able to move the substantive pendulum on this issue in 303 Creative, likely in the way that the more conservative justices wanted to push the envelope in Masterpiece Cakeshop.

Case statistics

Since 2019 the Court has examined standing concerns in the majority opinion in at least 30 cases.  Across these terms the breakdown is 10 cases in the 2022 term, eight in 2021, seven in 2020, and five in 2019.  Certain justices also relayed standing concerns outside of merits cases such as Justice Thomas’s dissent from denial of cert in City of Ocala v. Rojas and Justice Sotomayor’s in Storey v. Lumpkin.

In the merits decisions, 12 of these 30 were made along ideological lines which constitutes a larger percentage of this set of cases than the normal subset of ideological decisions across the justices’ full set of decisions in a term.  Some of the reasons for this could be due to the ideological and strategic motivators inherent in these cases. The graph below of vote breakdowns for this set of cases mirrors what we might expect give the propensity for ideological decisions in such cases.

The justices ruled in favor of standing existing in all of the cases that broke along ideological lines this past term: 303 Creative, Biden v. Nebraska, and in the affirmative action decisions.  In the affirmative action cases for instance, Chief Justice Roberts wrote,

“The Commission was therefore a genuine membership organization in substance, if not in form. And it was “clearly” entitled to rely on the doctrine of organizational standing under the three-part test recounted above. Id., at 343, 97 S.Ct. 2434.”

With the Court’s 7-2 decision in Haaland v. Brackeen the justices in the majority held against standing in the case. Justice Barrett wrote for the majority,

“But the individual petitioners have not shown that this injury is “likely” to be “redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U. S. ––––, ––––, 141 S.Ct. 2190, 2203, 210 L.Ed.2d 568 (2021). They seek an injunction preventing the federal parties from enforcing ICWA and a declaratory judgment that the challenged provisions are unconstitutional. Yet enjoining the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements.” [hold onto the citation to the 2021 TransUnion case above as it becomes important again shortly]

Still as the next graph shows, Chief Justice Roberts assigned the majority of these decisions to himself for authorship.

With Roberts and Kavanaugh writing the bulk of these opinions both Roberts’ control over Court-related doctrine and the power of the middle justices ideologically becomes apparent in these cases.

Case Network

How do we situate the recent decisions in the Court’s overall set of standing cases? One way is to look at the connections between cases. To do this I created a table that charts each case connection by looking at the standing related cases cited in each of the Court’s most recent standing decisions.  The cases cited more frequently are ones that are more central to the standing doctrine. These data were then pooled together to create a network map of the citation relationships.

The darker green dots show the cases most central to doctrine as seen through the lens of the current cases’ standing decisions. For those more familiar with the Court’s current standing doctrine you might recognize some of the more important past decisions focusing on standing including Lujan, Spokeo, and Hollingsworth v. Perry. It also highlights some of the more relevant recent standing decisions including TransUnion v. Ramirez which has already been cited in other recent standing-related decisions and Carney v. Adams.

These connections show how cases dealing with standing have downstream effects on the next set of cases relating to similar issues. We already have some sense of the cases out of the most recent set that are likely to affect future decision making. With this information mixed with what we already know about the justices’ authorship and vote breakdown preferences in this set of cases we begin to get a picture of how future standing cases may play out.

Conclusion

This is not the end of the Court’s standing cases for the near future.  Within the last couple of weeks, the Court put out an order in next term’s case Acheson Hotels v. Laufer noting that the parties should focus on mootness issues (lack of current standing) as they will be examined in oral argument.  The case itself is about standing within the context of individual “testers” of accommodations under the Americans with Disability Act.

What will be interesting outside of this case is the more macro issue of where the Court goes from here. Will the Court continue illuminating dimensions of standing for future litigants or will it move on to deal with other issues, both substantive and procedural, facing the justices. While the justices themselves will need to answer this question and will do so with the set of cases they take, the Acheson Hotel case portends that the justices are not yet through hammering out the specifics of the standing doctrine and that we can expect more such cases defining the Court’s gatekeeping doctrines in future terms.

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Find Adam on X @adamsfeldman and on LinkedIn

Thanks to Neal Rechtman for his insights on Justice Brandeis and Brandeis’ development of theories of justiciability.