Within certain limits,[1] our federalist system leaves states free to give their branches of government more, fewer, or different powers than those allotted to the branches’ federal counterparts. State courts are not bound by federal Article III constraints on justiciability, so they can exercise powers under their own constitutions that federal courts cannot under the U.S. Constitution.[2] As Lindsey Buckingham might have put it, state courts can go their own way.[3] Yet state courts frequently adopt federal justiciability doctrines—sometimes questionably so.[4] 

Alabama illustrates this dynamic. For a long time, the Supreme Court of Alabama extended justiciability in state court beyond the limits on justiciability recognized in federal court.[5] But in 2003, without explanation, the court adopted the U.S. Supreme Court’s test for Article III standing (injury in fact, causation, and redressability) from Lujan v. Defenders of Wildlife[6] and applied that test in state court.[7] The court has done so repeatedly since then.[8]

In Hanes v. Merrill,[9] the Supreme Court of Alabama once again applied the Lujan test, and it held that the plaintiffs lacked standing to challenge the state’s use of electronic-voting machines in elections.[10] An amicus brief filed in support of the plaintiffs challenged the validity of applying Lujan to cases brought under the state constitution.[11] The Hanes court declined to reach that issue because the parties’ arguments adhered to “the framework of Lujan” as applied in Alabama.[12] But three justices who concurred in the outcome in Hanes each wrote separately to express concern about whether Lujan is consistent with the “original meaning” of the Alabama Constitution and to invite future challenges squarely presenting that question.[13] 

Justices Jay Mitchell and Greg Cook expressed these concerns in short concurrences.[14] But Chief Justice Tom Parker expounded on what he believes to be the right framework for analyzing standing under the Alabama Constitution.[15] Like recent opinions by Justice Clarence Thomas of the U.S. Supreme Court and Judge Kevin Newsom of the Eleventh Circuit, Chief Justice Parker’s concurrence argued that the standing inquiry should differ depending on whether the right claimed by the plaintiff in a case is a “public right” or a “private right.”[16] For cases involving public rights—cases such as Hanes itself, which involved a challenge to a statewide public policy—the Lujan framework is apt in light of the historical understanding of the judicial power and its limitations vis-à-vis the executive power.[17] Because it requires an injury-in-fact in addition to a “cause of action” to sue, Lujan’s framework ensures that judges in public-rights cases do not become surrogate executive-branch officials by acting to protect the public at large without a proper “case” before them.[18] But in “private rights” cases—such as those involving run-of-the-mill tort and contract disputes between private actors—no such separation-of-powers concerns are present.[19] Thus, on Chief Justice Parker’s reading of the history, standing in private-rights cases need not require an injury apart from the claimed violation of legal rights.[20] Therefore, Lujan’s framework is inapt in such cases; instead, in private-rights cases “a court should ask solely whether the plaintiff has a cause of action” to sue.[21]

Time will tell whether there are enough votes on the nine-member Supreme Court of Alabama to modify or abandon Lujan’s framework for analyzing standing in state court. But if the concerns of the three concurring justices in Hanes are more widely shared among the justices, the Alabama Supreme Court soon might just “break the chain” with Lujan it forged more than two decades ago and instead go its own way on standing.[22]

[1] See, e.g., U.S. Const. art. IV, § 4 (guaranteeing to the states a “Republican Form of Government”).

[2] See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).

[3] Fleetwood Mac, Go Your Own Way, on Rumours (Warner Bros. 1977).

[4] See, e.g., Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1838 (2001).

[5] See, e.g., Zeigler v. Baker, 344 So. 2d 761, 763–64 (Ala. 1977) (discussing taxpayer standing).

[6] 504 U.S. 555 (1992).

[7] See Stiff v. Ala. Alcoholic Beverage Control Bd., 878 So. 2d 1138, 1141 (Ala. 2003) (adopting 504 U.S. 555, 560–61 (1992)); accord Ala. Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003).

[8] See, e.g., Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1119–20 (Ala. 2003); Ex parte King, 50 So. 3d 1056, 1059 (Ala. 2010); Ex parte Aull, 149 So. 3d 582, 592 (Ala. 2014). 

[9] 384 So. 3d 616 (Ala. 2023).

[10] Id. at 620–21.

[11] See id. at 621 n.3. 

[12] Id. 

[13] Id. at 624 n.5 (Parker, C.J., concurring in part and concurring in the result); see also id. at 623 (Cook, J., concurring); id. at 622 (Mitchell, J., concurring).

[14] Id. at 622 (Mitchell, J., concurring); id. at 622–23  (Cook, J., concurring).

[15] See generally id. at 623–27 (Parker, C.J., concurring in part and concurring in the result). 

[16] Id. at 624–25 (citing, for example, TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) (Thomas, J., dissenting); Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1139 (11th Cir. 2021) (Newsom, J., concurring)). 

[17] Id. at 624–25, 627.

[18] Id. at 625–26. 

[19]Id. at 626. 

[20] Id. at 625.

[21] Id.

[22] See Fleetwood Mac, The Chain, on Rumours (Warner Bros. 1977). 

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