Month: July 2024

“Amid mounting pressure for Supreme Court reform, Congress has before it one relatively straightforward option: enshrine Scalia’s “standing test” and legislate the basic requirements for who can sue over major issues of national importance.
Currently, the law concerning standing is governed by a series of Supreme Court cases that sort out which plaintiffs can bring cases in federal court in the first place. If it’s the wrong plaintiff, the case is thrown out. It also keeps federal judges out of the business of legislating under the pretense of legitimate litigation.

But so far, there is no general “standing” statute. The court has set its own standards for which cases it and lower courts can hear, pursuant to its reading of the Constitution. Congress should change that and set down its own marker. Although the current right-wing justices could decide to strike down standing legislation as impinging on their constitutional prerogatives, codification of standing law would send an important message that Congress is willing to impose reasonable checks and balances on the justices.

Standing comes from Article III of the Constitution, which gives federal judges the job description of deciding “cases.” The case law around standing amounts to the court’s working definition of the word “case”: At its core, it requires that plaintiffs have an injury that’s unique to them and not shared by the general population. Standing is central to the separation of powers because judges are supposed to only consider disputes between discrete parties that occurred in the past.

To grasp the distinction, imagine a case in which a city miscalculates the property tax liability owed by a homeowner for a single residence. She sues the government to get that particular financial injury redressed. Resolving that dispute is a job for the courts because it’s between two discrete parties and involves retroactive relief.

Legislatures, by contrast, make rules that are future-oriented and apply to the general population. If the homeowner wants the general property tax rate lowered, she must push legislators for action, not the courts. Standing holds judges within their constitutional lane by keeping sweeping policy disputes impacting the broader public out of courtrooms.

The Constitution does not define the word “case,” however, so the Supreme Court has had to fill in the blanks over the years by requiring, first and foremost, a concrete “injury” to make something a case. In cases between private parties, the injury is usually obvious — the defendant broke a contract or committed a tort that left the plaintiff worse off than they were before. In cases against the government, if the plaintiff is a corporation, it’s easy to show that a regulation or legislation causes harm to their business. But if a regular citizen wants the government to take action that affects the public — such as enforcing clean air standards or making mifepristone unavailable across the country — it’s harder to show an injury that’s particularized, or special, to the actual plaintiff bringing the suit.

For those cases, the court has long made clear that taxpayers cannot sue merely to vindicate their alleged “injury” in having their tax dollars misused by the government. That would allow angry taxpayers to turn the judiciary into the ultimate boss of the other two branches of government. Beyond that, what suffices as an injury can be hard to pin down, with the court adding a slew of adjectives to the test, requiring that an injury be imminent and not speculative or hypothetical, for example.

The governing standard, created by the Supreme Court over decades and refined at Scalia’s hand, requires three things: 1) that the plaintiff has an injury that is unique to them, 2) that the defendant caused it and 3) that if the court rules in their favor, that injury will be fixed. The aim is to find the equivalent of a “broken arm” — versus a generic policy gripe — that courts can remedy with an order.”

…

“The fact that the court can pick and choose which cases in which to recognize standing law, and which they prefer to overlook it, cries out for congressional intervention.”

https://www.politico.com/news/magazine/2024/06/25/supreme-court-reform-congress-00164740