Access to the courts: Assessing modern standing doctrine and potential reforms

Efforts to hold public officials and private companies accountable through the legal system often run aground on the same legal barrier: standing doctrine, which limits who may sue over misconduct based on whether a plaintiff’s injuries are concrete and particularized enough to constitute a “case” or “controversy” eligible for adjudication under Article III of the Constitution. Defenders of modern standing doctrine often maintain that it is necessary to prevent frivolous litigation and preserve the separation of powers. Yet critics argue that it sets too high and subjective a bar for who is able to access the courts.

While modern standing doctrine is closely associated with one of the heroes of legal conservatism, the late Justice Antonin Scalia, such criticisms are increasingly being voiced up and down the political spectrum. “The Supreme Court had ZERO interest in the merits of the greatest voter fraud ever perpetrated on the United States of America,” former President Donald J. Trump complained via Twitter shortly before leaving office. “All they were interested in is ‘standing’, which makes it very difficult for the President to present a case on the merits.”

On March 17, Governance Studies at Brookings hosted a webinar to discuss the costs and benefits of modern standing doctrine and what Congress and others may be able to do about it.

Viewers submitted questions for speakers by emailing [email protected] or via Twitter at @BrookingsGov or by using #StandingDoctrine.