Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?

Abstract

The Supreme Court seems to have shuttled the federal rule against hearing generalized grievances back and forth between a home in the Constitution and a home in the Court's prudence. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), stamped the latest forwarding address.

Where the generalized grievance finds its home orients the whole map to justiciability. The much controverted question of the sort of injury required for standing to sue may find answers in the location of the generalized grievance test. The prudential tests of standing focus upon the legal theory a party argues. The constitutional test of standing focuses upon the harm a party suffers. If the generalized grievance test retains its focus upon legal theory even as the test is drawn into constitutional standing doctrine, the injury-in-fact of that doctrine moves from simple harm towards the old invasion-of-legal-interest reminiscent of standing as a test of merits and not of justiciability.

This Article tracks the generalized grievance, exploring along the way the whole terrain of standing, ripeness, and mootness. (And in so doing, the Article finds that constitutional standing has more to do with the meaning of "judicial Power" than with the meaning of "Cases" and "Controversies.")

Keywords: Standing, Federal Courts, Constitutional Law