Standing does matter in our legal system, but our courts are undermining it.

Writing from the Meese Center for Legal and Judicial Studies at the Heritage Foundation, GianCarlo Canaparo offers a short explainer of why standing matters in legal proceedings and how the judiciary is currently making a mess of it.

Both of those points are valuable to read, because the reason to limit cases based on standing may not be immediately obvious:

Standing, in the abstract, is one way the Constitution limits the judiciary’s power. Article III says that “the judicial Power” extends only to “cases” and “controversies.” For a case or controversy to exist, someone must have been harmed by someone else’s unlawful conduct. This limitation prevents the courts from turning into what Justice Byron White called “roving commissions assigned to pass judgment on the validity of the Nation’s laws.”

Additionally, standing limits the possibility of lawfare that harms people or organizations by keeping them constantly defending themselves in court.

The problem (as with so much else in our American system, these days) arises if the principle is unevenly applied.

… suppose you’re a judge and have made up your mind that you want to uphold the Affordable Care Act, but you don’t want to be accused of picking sides on a politically fraught issue. You can effectively uphold the Affordable Care Act by saying that courthouse doors are closed to the law’s challengers. This insulates you from accusations of partisanship because the media will say you dismissed the case on a “technicality.”

On the other hand, imagine you’re a judge who is determined to use your power to advance your political agenda, and your agenda includes opposing a citizenship question on the census. Any injury that a citizenship question causes must be concrete, particularized, and fairly traceable, but if you can distill all of those requirements into the infinitely flexible phrase “not speculative,” you can open the courthouse doors to any challenger you want.

If the rules are not objective and predictable, judges can prevent cases from ever being heard.  This is deeper than just not wanting to be accused of picking sides.  A judge who intends to issue a particular verdict can be made to look a fool if the other side clearly has the stronger argument.  Keeping the case out of the court maintains a forcefield of innocent ignorance around the matter.

In contrast, when a judge’s allies can produce a controversy with particulars that give them a stronger (or at least more-plausible) argument, he or she can create opportunities to hear the case and rule on it.

Unfortunately, as Rhode Island has taught me time and time again, there is no oracle of justice on which to rely for objective review when the courts veer from principle.  A strong cultural demand for due process and equal treatment must permeate the legal establishment and the public at large.  When that goes, standing is simply another marker of a privileged caste.


Featured image by Tingey Injury Law Firm on Unsplash.

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