Obscure legal doctrines rarely go viral. But that’s exactly what happened on December 12, 2020,
when then-President Donald J. Trump took to Twitter to complain about his treatment at the hands of the federal judiciary.
“The Supreme Court had ZERO interest in the merits of the greatest voter fraud ever perpetrated on the United States of America[,]” Trump wrote, reacting to a recent decision by the nation’s highest court that declined to hear a challenge to the 2020 election results brought by his political allies in the Texas state government. “All they were interested in is ‘standing’, which makes it very difficult for the President to present a case on the merits. 75,000,000 votes!”1 More than 274,000 Twitter users “liked” Trump’s message. Few of them seem likely to have realized that the argument Trump was making echoed complaints that progressives have been putting forward for decades.
The word at the center of Trump’s tirade—standing—is shorthand for a complex and contested legal doctrine that plays a central role in determining who has access to federal courts and for what purposes. Rooted in a particular understanding of the Constitution, its contours have built up through the uneven accumulation of judicial precedent over the past several decades, resulting in a complicated set of rules that are often beyond even Congress’ ability to supersede or amend.
In recent decades, the strict application of standing requirements has become a widely accepted feature of the federal legal system.
The Supreme Court has long described the careful assessment of standing and rejection of cases where it is lacking as “fundamental to the judiciary’s proper role in our system of government[.]”2 In recent decades, the strict application of standing requirements has become a widely accepted feature of the federal legal system. Many see this as a crowning accomplishment for legal conservatives, who have frequently advocated for a narrower view of standing.3 Others, however, have accused standing doctrine of being “squishy and subjective,”4 “incoherent, inconsistent, and unprincipled[,]”5 and “a largely meaningless litany recited before the [c]ourt…chooses up sides and decides the case”6 in ways that too often reflect their personal views as opposed to the substance of the law. Progressives have repeatedly objected that standing doctrine is too readily manipulated and too often used to limit who may use the courts to address unlawful behavior, in a manner that frequently disadvantages already vulnerable communities.7
But as Trump’s brief encounter with standing doctrine illustrates, these views no longer fall so neatly along ideological lines. Despite some discomfort, progressives have become more adept at using standing doctrine to thwart litigation seeking to advance conservative policies, including many challenges to the 2020 election results put forward by former President Trump supporters.8 Meanwhile, a growing number of conservative judges, academics, and practitioners have begun to echo some of the criticisms of standing doctrine put forward by their progressive counterparts, including that it is, in the words of one Trump-appointed federal appellate judge, “incoherent in theory and easily manipulable in practice.”9
This shift in perspective presents an opportunity to revisit modern standing doctrine and its consequences. Toward this end, the Brookings Institution has hosted several roundtables with legal experts and practitioners to discuss their views on and experiences with standing doctrine.10 This report draws on the insights shared in those discussions as well as an independent survey of relevant case law and academic literature. The goal is to not only bring some of the contemporary policy issues raised by standing doctrine into sharper focus for audiences who may be less familiar with the doctrine, but also to identify some mechanisms through which Congress, policymakers, and other interested parties may be able to address them.
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- @RealDonaldTrump, Twitter (Dec. 12, 2020, 11:04 AM EST), available at https://www.thetrumparchive.com/.
- Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976) (Powell, J.).
- See, e.g., Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk Univ. L. Rev. 881 (1982) (arguing that “the judicial doctrine of standing is a crucial and inseparable element of th[e] principle” of separation of powers to which “courts need to accord greater weight than they have in recent times”).
- Kimberly Wehle, The Squishiness of Federal Courts’ ‘Standing’ Doctrine, The Bulwark (Dec. 23, 2020), https://www. thebulwark.com/the-squishiness-of-federal-courts-standing-doctrine/.
- Richard Pierce, Standing Law is Inconsistent and Incoherent, Yale J. Reg. Notice & Comment (Sept. 7, 2021), https:// www.yalejreg.com/nc/standing-law-is-inconsistent-and-incoherent/.
- Abram Chayes, The Supreme Court 1981 Term—Foreword: Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4, 22–23 (1982).
- See, e.g., David H. Gans, How Scalia Made It Difficult to Bring Cases to Court, The Atlantic, Aug. 1, 2016, https://www. theatlantic.com/politics/archive/2016/08/scalia-access-to-courts/493592/ (“All too often, the Court’s standing jurisprudence has been at its strictest when courts are asked to redress harms to racial minorities and others not likely to prevail in the political process”).
- See Josh Gerstein, After Trump’s Drubbing in the Courts, Liberals Fear a Legal Hangover, Politico (Jan. 1, 2020), https://www.politico.com/news/2021/01/01/donald-trump-courts-election-legal-hangover-453217.
- Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1132 (11th Cir. 2021) (Newsom, J., concurring). For other similar views by conservatives, see Transunion v. Ramirez, 594 U.S. __ (2021) (slip op.) (Thomas, J., dissenting); Arpaio v. Obama, 797 F.3d 11, 25 (2015) (Brown, J., concurring); David B. Rivkin, Jr. & Elizabeth Price Foley, Federal Courts Need to Stop Obama from Flouting the Constitution, Wash. Post (July 25, 2014).
- For a recording and transcript of a public event that was a part of these discussions, see Access to the Courts: Assessing Modern Standing Doctrine and Potential Reforms, The Brookings Institution (Mar. 16, 2021), https:// www.brookings.edu/events/access-to-the-courts-assessing-modern-standing-doctrine-and-potential-reforms/.
This paper is the culmination of a larger project that was originally developed and executed by Victoria Bassetti and Margaret Taylor. The author thanks them for their contributions, which include some early draft language of certain sections of this paper. He would also like to thank Kathleen Claussen, Norm Eisen, and Benjamin Wittes for their useful feedback as well as Kelsey Wiseman and Tim Bott for their research assistance.