Academic journal article The William and Mary Bill of Rights Journal

Does the Supreme Court Ignore Standing Problems to Reach the Merits? Evidence (or Lack Thereof) from the Roberts Court

Academic journal article The William and Mary Bill of Rights Journal

Does the Supreme Court Ignore Standing Problems to Reach the Merits? Evidence (or Lack Thereof) from the Roberts Court

Article excerpt

The Supreme Court is often accused of using standing doctrine to manipulate its docket. Critics frequently see dismissals for lack of standing not as legitimate decisions about jurisdiction (for example, a correct determination that a plaintiff suffered no cognizable injury, or that the suit seeks no remedy that will redress a claimed injury), but instead as the Court's avoidance of a sensitive merits decision or even as bias against a particular class of plaintiffs.1 So, for example, the Court's recent dismissal for lack of standing of the marriage equality case, Hollingsworth v. Perry,2 seems to be an effort to avoid issuing a merits decision that would have precluded further percolation of the marriage equality question among the states.

If standing is a method of docket manipulation, then we might also expect the Court to find standing present, despite standing problems, when it wants to reach the merits of a case. But the absence of a standing discussion is an example of manipulation only if there is no standing. Many cases lack standing discussions because such discussions are unnecessary (standing is obvious); in such cases, no manipulation has occurred. In other cases, the absence of a standing discussion may in fact reveal a Court ignoring standing to reach the merits-recent examples include the Affordable Care Act case, NFIB v. Sebelius,3 and the affirmative action case, Fisher v. University of Texas.4 If such manipulation is found to be widespread, it would mean that a majority of Supreme Court justices are regularly ignoring the constitution to exercise power that they do not have.

To see whether this is a common strategy for the Court, a more general examination of the docket is required. Professor Staudt, for example, took the approach of looking at all cases within a particular area (taxpayer lawsuits) and concluded that judges sometimes manipulate standing doctrine to reach favored results, but much less frequently than they were accused.5

The theme of this panel, "Standing in the Roberts Court," presents an excellent opportunity to use a different method of empirical analysis. Chief Justice Roberts joined the Court for the October Term of 2005, and his eight terms as Chief offer a manageable sample of cases (a total of 638 merits opinions). Moreover, the Roberts Court is the current Court, meaning that conclusions drawn from this analysis are relevant to today's litigants. As I discuss below in Part II, I have identified two primary sets of cases that would permit the accusation of manipulation: cases where the Court addressed standing, implausibly found it present, and reached the merits (what I will call the Implausible Cases); and cases where the Court failed to discuss standing, yet the court or courts below discussed standing extensively, suggesting that standing was at issue in the case (what I will call the Avoidance Cases).6 These cases are particularly worth considering because a Court concerned about its dignity seems more likely to avoid than to include an implausible standing analysis.

I have identified only one case that I find clearly Implausible. I have identified eighteen Avoidance Cases, which fall into three categories. First, in fourteen of the cases, the lower courts seem to have gotten the standing question right, and the Court does not need to examine standing any further (though, given the Court's repeated emphasis on the importance of determining standing before proceeding to the merits, one might expect the Court to drop a footnote agreeing with the analysis/es below). Thus, although these cases are technically Avoidance Cases, they are not manipulative Avoidance Cases. Second, in three cases, including the NFIB case, standing was probably present, but the Court should have proved it; the absence of a standing discussion may represent the Court's preference to ignore standing and reach the merits, a mild example of manipulation.7 Third, and finally, in only one case-the Fisher case-standing was probably not present, the absence of a standing discussion is highly irregular, and the Court has manipulated standing to reach the merits. …

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