The Volokh Conspiracy - Still Standing in the Roberts Court:

In my own remarks at the Case Western Reserve Law Review symposium on "Access to the Courts in the Roberts Era," I argued that the net effect of the Roberts Court's decisions on standing has been to liberalize standing rules, thereby increasing access to federal courts. I, of course, noted the problem of reaching definitive conclusions after only three years (particularly with a potentially significant standing decision Summers v. Earth Island Institute still to come this term), and also noted that most of the recent standing decisions have been relatively insignificant. But those that have changed standing law, in particular Sprint v. APCC and Massachsuetts v. EPA, have expanded Article III standing. More from my remarks below the jump.

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In some areas the Roberts Court appears to have reduced access to the courts. For instance, the Roberts Court appears to be quite sympathetic to business arguments for federal preemption of state tort claims, particularly when the Solicitor General's office is on side. As Gene Nichol noted in his remarks, this is a court that interprets statutory limits on litigation strictly and is reluctant to recognize new implied rights of action or adopt new, broadened interpretations of statutory bases for suits against private firms.

What is interesting is that in each of these areas, the Court is effectively deferring to the legislature. Decisions in the relevant cases all turn on statutory language and legislative intent, and all are readily overturned by legislative action. Indeed, just this week Congress passed and the President signed legislation to overturn the Court’s Ledbetter decision.

Article III standing is another matter. Here the limits on the ability of private parties to bring suit is a matter of constitutional law. While Congress undoubtedly retains some ability to alter the bounds of standing on the margin, the Article III standing requirement is, at its core, a Constitutional rule . Congress may tinker on the edges, but it cannot confer standing on parties that completely fail to meet the constitutional requirements.

Focusing on the Roberts’ Court approach to standing thus allows us to refine our assessment of the Roberts Court. It enables us to distinguish between generic claims about "access to justice" and a more nuanced understanding of how the Court approaches different types of access questions. In particular, recognizing that the Court has not restricted Article III standing suggests that the Court is less hostile to "access to the courts" than it is reluctant to define the contours of such access itself, leaving the job of defining and delimiting citizen rights to sue to Congress.

While the Court has adopted miserly interpretations of relevant statutes, the Roberts Court has yet to tighten the requirements Article III standing in any meaningful way. To the contrary, insofar as the Roberts Court has worked any change in standing law over the past three years, it has made it easier for states and citizen groups to sue in federal court seeking enforcement of regulatory laws. While the Court’s decisions denying standing have largely reaffirmed prior holdings, warts and all, Massachusetts v. EPA and, to a lesser extent, Sprint v. APCC, have made it easier for litigants to demonstrate that they fulfill Article III’s requirements, and have thus expanded litigant access to federal courts.

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Related Posts (on one page):

Still Standing in the Roberts Court:
Nichol on "The Roberts Court and Access to Justice":
CWRU Symposium on "Access to the Courts in the Roberts Era":

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arbitraryaardvark (mail) (www):

do you mean access, or meaningful access?
that is, are you only looking at whether a case will get dismissed on justiciability grounds, or whether there are new categories of cases that could be brought but will lose.
in washington state grange and crawford v marion county, the court has taken away/sharply narrowed first amendment facial challenges.

1.31.2009 2:41pm

Asher (mail):

Well yes, that's what's happened in the big Roberts Court's standing decisions, but note that Roberts and Alito themselves - the only members that separate the Roberts Court from the Rehnquist Court - were in the minority on both. So really what you have is a 5-member bloc that's carried over from the Rehnquist Court that's soft on standing, whereas Roberts and Alito aren't any more easygoing on this issue - are arguably less so - than Rehnquist and O'Connor. So I don't know if you can really talk about the net effect of the Roberts Court's standing decisions being the liberalization of standing; that almost makes it sound as if Roberts himself has ushered in this liberalization. If anything, the story here is that Justice Kennedy has disentangled himself from the standing hawks bloc on a tentative basis.

1.31.2009 6:39pm

Dilan Esper (mail) (www):

It is a little bit of a stretch to say that the Roberts Court preemption doctrine is just deference to Congress. They are preempting state law claims that were never meant to be preempted by Congress. They are, instead, using deference to Congress as an excuse to simply trash state law causes of action that the Court's conservatives would like to get rid of or limit.

2.1.2009 1:30am

advisory opinion:

Dilan, which cases do you have in mind?

2.1.2009 9:58am

Hannah (mail) (www):

There's a response to this on Text &History, noting that while your point about expanding standing grounds may be true, Roberts himself really had nothing to do with it. Check it out.

2.3.2009 2:03pm

Jonathan H. Adler (mail) (www):

Hannah --

I never claimed Roberts had anything to do with the changes in standing law we have seen over the past three years. My paper was on the changes that have occurred, thus far, in the "Roberts Court." Moreover, in the discussion at the symposium, we specifically discussed how Chief Justice Roberts would have preferred to push standing law in a different direction.

JHA

2.3.2009 5:21pm

In the post to which Hannah links above, my posting is characterized as "a little disingenuous" because it referred to the actions of the "Roberts Court." In response, I submitted the following comment on the Text &History site:

How is it suddenly a "little disingenuous" to refer to a Court based upon the Chief Justice? Should we now not refer to decisions of the "Burger Court" as such if Chief Justice Burger dissented? As the post made clear, my comments were based on remarks at a symposium on the "Roberts Court," not on the jurisprudence of Chief Justice Roberts. To label my remarks "disingenuous" seems more than a bit obtuse.

JHA

2.3.2009 5:22pm

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