Is it “too easy” to show Article III standing, particularly in environmental cases? That is one of the questions tackled by Jonathan H. Adler, a law professor at Case Western Reserve University, in his recently published article on standing doctrine in National Review. Observing that legal conservatives have traditionally preferred stricter standing requirements to avoid having judges decide questions that are better left to the political branches, Professor Adler draws attention to recent critiques by some conservatives who argue that the doctrine is now being applied in a potentially too rigid, biased, inconsistent, or ahistorical fashion.
Adler notes that the Supreme Court, which is criticized by some for taking “conservative” positions, has increasingly dismissed cases for lack of standing where litigants have pressed conservative political agendas. This happened in last term’s FDA and Murthy cases, as well as in earlier challenges to the Affordable Care Act, Indian Child Welfare Act, and Biden immigration policies. At the same time, the Court has found adequate injury in fact for standing purposes where, for example, litigants have pressed for greater environmental protections.
Adler points to Justice Thomas and others who have argued—based on Founding-era history—that Congress should have more power “to authorize private individuals to file suit to advance statutory rights,” stating that “where a cause of action exists under common law or an express statutory grant, the Constitution does not require showing an injury beyond the violation of a legal right.”
Moreover, Adler touches on the views of Eleventh Circuit Judge Kevin Newsom, who has argued that the current injury-in-fact requirement from Justice Scalia’s famous Lujan majority opinion has little to no grounding in “the Constitution’s text and history” and is simply incoherent. Instead, Judge Newsom argues that standing should be granted where Congress has created a cause of action that authorizes individuals to vindicate a statutory right.
To Adler, while these arguments merit further examination, it is too soon to judge whether major changes to standing doctrine lie ahead. For now, the Court appears more likely to apply an increasingly exacting form of the doctrine, given that some Justices have expressed skepticism of doctrines like state special solicitude and associational standing. If the Justices do make standing more exacting, the approach should be applied neutrally—resulting in similar standing outcomes for conservative and liberal litigants.
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