Abandoning Standing: Trading a Rule of Access for a Rule of Deference

Abstract:     
The Supreme Court's long struggle over the nature of constitutional standing has taken on new urgency with the addition of Chief Justice Roberts and Justice Alito to the Court. Four justices are now strongly committed to a restrictive approach to standing that invokes separation of powers to bar federal courts from hearing the claims of plaintiffs who assert mere "generalized grievances." These four were just one vote away in Massachusetts v. EPA from blocking judicial review of the legality of EPA's failure to regulate greenhouse gases on the ground that global warming does not cause "particularized" injury. Four justices are strongly committed to a permissive approach that permits widely shared injuries to support standing so long as they are "concrete" enough. And Justice Kennedy's views are somewhere in the middle.

This Article uses this 4-1-4 split as an occasion to reexamine constitutional standing and, in particular, its relation to separation of powers. It concludes that neither the restrictive nor the permissive approach to standing can justify reliance on an indeterminate "injury" requirement to create a constitutional bar to judicial access. Nonetheless, the separation-of-powers concerns that motivate the restrictive approach do justify a rule of judicial deference. More specifically, just as Professor Louis Jaffe suggested nearly fifty years ago, these concerns justify a rule that courts should, when resolving "public actions," defer to the reasonable judgments of political branch officials.

Number of Pages in PDF File: 56

Keywords: standing, separation of powers, judicial deference

Accepted Paper Series