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.
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