God, Gaia, the Taxpayer, and the Lorax: Standing, Justiciability, and Separation of Powers after Massachusetts and Hein

Abstract:     
The Supreme Court decided two important standing cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. The latter is important for what it did, the former for what it did not do. Whereas Hein hewed closely - perhaps too closely - to prior standing precendents, the Massachusetts decision substantially departed from existing precedent and established a new doctrine of special solicitude to state standing. Both decisions involved generalized grievances about federal government policies that affect citizens as a whole, but point in opposite directions. In many respects the opinions are in significant tension with each other, and embrace competing conceptions of the role of the judiciary in the separation of powers. What neither decision did, however, is etch a conservative imprint on the law of standing.

This article is based upon remarks delivered at the Regent University Law Review symposium, Justiciability After Hein and Massachusetts: Where Is the Court Standing? Nov. 30, 2007.

Keywords: Standing, Justiciability, taxpayer standing, generalized grievances, Massachusetts v. EPA, Hein v. Freedom from Religion Foundation

JEL Classifications: K10

Accepted Paper Series