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'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.
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":