Academic journal article The William and Mary Bill of Rights Journal

How to Make Sense of Supreme Court Standing Cases-A Plea for the Right Kind of Realism

Academic journal article The William and Mary Bill of Rights Journal

How to Make Sense of Supreme Court Standing Cases-A Plea for the Right Kind of Realism

Article excerpt

It is a commonplace that the Justices of the Supreme Court routinely manipulate standing doctrine to promote their ideological goals, that the Court's pattern of decisions is therefore incoherent, and that seeking to make sense of standing doctrine is a fool's errand.1 The elements of this indictment do not wholly lack foundation in fact. If they were utterly baseless, the familiar view would presumably not have achieved the prominence that it has.2 But judges and lawyers cannot act on the premise that standing doctrine makes no sense-at least when they write opinions or briefs or argue to a court. Law professors have no similar obligation to portray standing as reflecting coherent categories or principles. In their role as seekers of truth, they are free to shout that the emperor has no clothes and that there is no law, only politics or disorder, insofar as standing is concerned.3 But I believe that law professors err if they give up too easily on making sense of Supreme Court standing opinions. Much more often than not, it is possible to identify patterns or categories into which the Court's decisions divide and to reach correspondingly defined predictions about their future implications.4

Using the Supreme Court's most-analyzed standing opinions from its 2012 Term as test cases, in this short Essay I defend what I shall call "the right kind of Realism," or more frequently "doctrinalist Realism," as an approach to reading standing cases and finding coherence in standing doctrine. Legal Realist thought has many strands.5 I have no interest in trying to trace all of them or in entering the debate about which is most central or important. Nevertheless, my thesis draws inspiration from the strand of Legal Realism that emphasizes the distinction between the forms of words that judges use in laying down and describing legal doctrine and the kinds of facts that actually drive judicial decisions. This form of Realism is not nihilist. It counsels the parsing of opinions to identify their operative facts against background patterns that could also facilitate predictions of results in future cases.6 In my view, as I shall explain, Realist analysis of this kind could also bear on how judges should, and not merely would, make subsequent decisions. In seeking prescriptions for how judges should decide cases, Realism of the kind from which I draw inspiration is often open to the insights of social science.7 But it also insists that the law, if rightly understood, typically makes sense in its own terms.8 In figuring out what the law is, however, it insists that one should not be mesmerized by the bare words of judicial opinions, abstracted from the facts that evoked them.9

In suggesting that there is more order to the Supreme Court's standing decisions than meets the eyes of many contributors to the literature on standing, and in championing a doctrinal Realist strategy of reading the Court's opinions to identify operative facts and background patterns that the Court does not always expressly mark as such, I float a very large thesis that I shall not even attempt to develop fully in this short Essay. My approach is more suggestive than definitive. More precisely, my strategy focuses on the Court's three most important standing cases from the 2012 Term: Clapper v. Amnesty International USA,10 United States v. Windsor,n and Hollingsworth v. Perry.12 Each invites, and each has attracted, criticism as unprincipled, manipulative, and inconsistent with precedent.13 But each also teaches generalizable lessons, albeit lessons of different kinds, about how the Court has decided standing cases in the past and will likely decide standing cases in the future. In at least the first two of these three cases, the Court's approach reflects recurring distinctions of which lower courts should take account in ruling on standing issues.14

The Essay comprises six brief Parts. Part I describes the standing issues and analysis in Clapper, Windsor, and Hollingsworth and sketches some of the criticisms to which each decision has appeared vulnerable. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.