When it comes to Supreme Court decisions on standing, the hits keep coming. Whether you view “hits” in the Casey Kasem sense or the Joe Louis sense may depend on your perspective. It seems like only yesterday that I posted a Jot about standing, and the Court has not let up—with more big decisions (like Murthy v. Missouri and the mifepristone case) on the way before the current Term draws to a close in June.
William Baude and Samuel Bray’s excellent article is not just about standing. It also is about remedies and other aspects of the judicial role. They recognize, of course, the inextricable relationship between standing and remedies; one element of Article III standing is redressability, after all. And they acknowledge—as others have—legitimate questions about whether current standards “have been cashed out in exactly the right places,” including whether they “should not be in a doctrine called or conceptualized as Article III standing, but instead should be handled by rules about causes of action, equitable jurisdiction, various civil procedure doctrines, and so on.” For Baude and Bray, the guiding principle should be this: “federal courts should be deciding only cases between the proper parties that result in proper relief.”
In urging this reset, the authors rib the Supreme Court for its all-too-frequent invocation of “mantras” about the relationship between Article III standing and separation of powers, asking whether such language reflects merely “the tautological point that because standing is a judicial construction of the requirements of Article III, and because the separation of powers comprises Articles I, II, and III of the Constitution, any violation of the doctrine of standing must also be a violation of the separation of powers.” Baude and Bray also keenly diagnose how the current collection of doctrines has prompted a dynamic where judicial intervention is a nearly automatic consequence of any significant action by the federal government. They show this vividly in discussing the standing of state governments to challenge federal policies—an issue they properly recognize as “especially important for the centrality of standing in the twenty-first century.” The pattern of blue-state attorneys general suing the Trump administration, followed by red-state attorneys general suing the Biden administration, has become “like a high school theater play on the last night of the performance, when everyone knows the lines but is so tired of saying them.” Combine that with the ability to obtain preliminary, nationwide injunctions in hand-selected challenger-friendly districts, and we end up with “a state of affairs where almost every major presidential act is immediately frozen by a federal district court.”
State governments are not always the plaintiffs in such lawsuits. But the state of affairs Baude and Bray describe has the added benefit of helping to explain the cognitive dissonance that can arise when judges are called upon to lay justiciability doctrines alongside their priors about the underlying substantive arguments at play in any particular lawsuit. Just a few weeks ago, the jurist who authored the Supreme Court’s decision in Clapper v. Amnesty International—denying standing to challenge the constitutionality of the massive federal surveillance program authorized by the 2008 amendments to the Foreign Intelligence Surveillance Act—expressed frustration during oral argument that to find a lack of standing to challenge the FDA’s approval of the abortion drug mifepristone would mean that “the American people have no remedy.” Will what’s good for the goose be good for the gander? It’s hard to predict whether judges will be guided by core views about the proper role and reach of the judiciary, by the impact of such issues on the immediate case at hand, or by some prediction of the likely effect on certain types of claims, litigants, or policies.
Baude and Bray argue for a more circumscribed judicial role across the board—regardless of the partisan valence of a particular lawsuit. And they provide a concise but extremely compelling summary and critique of issues that have taken central stage in recent years: state standing (as mentioned above), preliminary injunctions, national injunctions, and the one-good-plaintiff rule. The authors do praise some of the Supreme Court’s recent decisions as reflecting a more standing-skeptical position. One example is United States v. Texas, in which the Court concluded that states lacked standing to challenge the Biden Administration’s immigration enforcement guidelines. Baude and Bray are less convinced by Biden v. Nebraska, which found that one state (not Nebraska, despite the caption) had standing to challenge Biden’s student loan forgiveness program. They are encouraged, however, by the fact that both decisions decline to repeat the Court’s observation almost two decades ago that state governments are “entitled to special solicitude in our standing analysis.”
The authors close with a recognition that meaningful change may not come solely by recalibrating the particular doctrinal formulas. Baude and Bray also urge a different judicial “mindset” that “internalize[s]” standing as “a judicial virtue.” On this account, “[p]roper parties and proper relief help us have proper courts, that is, courts acting as courts.” They aptly cite Justice Kagan’s observation (from her Biden v. Nebraska dissent) that standing doctrine is an “edict” to the federal judiciary to “stay in its lane.”
At the end of the day, Baude and Bray are certainly asking the right question: which parties may properly seek what kinds of relief? Different jurists, scholars, and advocates may provide a range of different answers to this question. But we are more likely to get a just, coherent answer if we wrestle with that question directly.
