blogging Fed Courts 1: Article III courts, standing

It being the end of a terribly difficult semester, I’m not likely to post much in the next few weeks unless it’s about Federal Courts or Criminal Procedure. So… why not blog about Federal Courts? I always suspect I don’t really know a subject until I can explain it to people who know nothing about it. So here’s a little experiment to see if I can do that with my classes.

Article III courts

Federal Courts, at least at our school, begins with a review of the old chestnut, Marbury v. Madison. This is a case even non-lawyers may have heard of; it establishes the principle of judicial review of statutes. There’s nothing in the Constitution that explicitly gives courts the power to say that laws are constitutional or not. The Framers probably understood judicial review to be an inherent part of the judicial power — see Alexander Hamilton’s exposition in Federalist 78, for example. Still, until Marbury, it had never been stated in an official way.

Chief Justice Marshall gets off some terrific rhetoric on this point:

It is emphatically the province and duty of the Judicial Department to say what the law is…. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law… [then] the Constitution, and not such ordinary act, must govern the case to which they both apply.

But there’s another question lurking in Marbury, and it’s the one that ultimately decides the case: what cases can the Supreme Court actually hear? In 1803, when Marbury was decided, this may have been something of an open question. Article III of the Constitution grants the Court original jurisdiction (i.e., jurisdiction to hear cases that haven’t already been heard by lower courts) in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” and appellate jurisdiction in “all the other Cases before mentioned,” where the “before” refers to the general list of cases that federal courts can hear. But does the constitutional grant of original jurisdiction over certain, very important types of cases mean that Congress can never grant original jurisdiction in other cases?

William Marbury, who was denied his commission as a judge by Secretary of State James Madison after a particularly acrimonious partisan election, sued Madison in the Supreme Court. Since the law giving Marbury the right to his commission was a federal law, this case fell comfortably within the grant of jurisdiction to federal courts generally (“all Cases… arising under… the Laws of the United States”). But did the Supreme Court have jurisdiction to hear it as an original, rather than appellate case? Marbury argued that it did, because the Judiciary Act of 1789 purported to extend the Court’s original jurisdiction to actions for a writ of mandamus — i.e., ordering a federal official to do something he’s required by statute to do.

The Court disagreed. In his famous opinion, Chief Justice Marshall acknowledges that Marbury has been injured in violation of a legally “vested” right. (I.e., he has a right to the commission.) But Marshall says that the Court can’t give him the relief he seeks, because Congress does not have the constitutional authority to expand the Court’s original jurisdiction. The original jurisdiction is a constitutional grant from the people, and it’s not subject to Congressional tinkering.

Whether you think that’s a plausible reading of Art. III, Sec. 2, that was the determination that the Court reached, and so we’re stuck with it. Not that the Court particularly wanted its original jurisdiction expanded — especially since back then it had to take every legitimate appellate case. (Nowadays its review of appellate cases is discretionary — that’s why you often hear people speculating about whether the Court will hear a case. They’re not required to.) And anyway, the accepted narrative is that Marshall was after bigger fish. By finding that the Court didn’t have jurisdiction, he got to do the things that were important to him. He could throw some darts at Madison and Jefferson, who were Democratic-Republicans (Marshall was a Federalist), without actually having to give an order that they might have refused to carry out — potentially triggering a crisis in the nascent constitutional order). And he could cement the power of the Court by expounding the principle of judicial review of Congressional statutes. It’s a clever opinion.


Marbury also asserts the general principle that for every violation of a vested legal right, there must be a legal remedy. (Even though poor Marbury never did get his remedy.) But a related question is whether federal courts can provide a remedy — or, indeed, an opinion — where no one has had his personal rights violated. It turns out the answer to this question is no.

Article III gives federal courts jurisdiction over “cases” and “controversies.” The terms are not defined, but collectively “cases and controversies” have been taken to be a mere subset of “all things you might be upset about.” In other words, you can’t bring an action in federal court just because you’re pissed off about something. Even if you’re totally right about it. You have to present a “case or controversy,” involving yourself, which the court could lawfully resolve.

The ability to successfully bring suit is usually called “standing.” (It’s a noun — you “have standing” to bring the suit.)

Here are the rules for standing. You have to have been personally injured. Your injury has to be “cognizable” by the courts — there may be injuries that, though real, the court is not prepared to acknowledge. The injury has to be “fairly traceable” to the conduct of the party you want to sue. And it has to be “redressable” by the courts — that is, the remedy you’re seeking in the suit has to be something that would actually fix the problem.

That sounds like a simple, clear-cut set of rules, and generally it is. In the vast majority of cases, standing is never even raised, because all the above elements are obviously satisfied. But the doctrine can be subtle in edge cases.


There’s been a series of environmental cases, for example, in which the court has struggled with the question of who may sue to prevent environmental harm that does not pose an immediate danger to human welfare. Do environmental advocacy groups have a cognizable personal stake in preventing a ski resort from being built in a pristine forest, or in ensuring that the Secretary of the Interior propagates regulations consistent with the Endangered Species Act? That is, can such groups show an cognizable injury? Generally, the answer has been that advocacy groups do not have standing based solely on, e.g., their love of nature. That said, the threshold for showing actual injury is quite low: in Sierra Club v. Morton, for example, the Club was able to show on remand that its members actually used a certain park threatened by development, and that was enough to gain standing. And in Lujan v. Defenders of Wildlife, Justice Blackmun speculated that if one of the group’s members had bought a plane ticket to visit the area affected by new regulations, the group might have had standing. (He considered this a ridiculous thing on which standing ought to turn, however.)

In Allen v. Wright, parents of black schoolchildren sued the IRS to challenge the procedures granting to tax-exempt status to a collection of segregated private schools that had sprung up in response to the de-segregation of the public schools. The parents claimed, among other things, that their children were harmed by the mere existence of “Government financial aid to discriminatory private schools.” (The “financial aid” referred to here is the schools’ tax-exempt status, not a direct government grant of funds.) The court acknowledged that in some cases a “stigmatizing” government action is a cognizable injury. However, “such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.” The Court did not explain who, in this situation, might be sufficiently stigmatized to challenge the schools’ tax-exempt status (perhaps black students who had applied to the schools?), but it clearly did not wish to extend standing to all black students everywhere.

Fairly traceable to the defendant’s conduct

A second asserted injury in Allen v. Wright was that the students were denied the right to attend integrated schools (because high numbers of white students were being siphoned off to the segregated private schools). This, the Court found, was a cognizable injury to the students. But now the Court found a second problem: the lack of integration in the public schools was not “fairly traceable” to the IRS’s policies in granting tax exempt status. To show that it was fairly traceable, one would have to show (1) that a change in the IRS’s policies would result in a change in these schools’ actual status, (2) that a change in tax status would cause the schools to change their discriminatory behavior, and (3) that parents of white children would return their children to the public schools if the private ones no longer discriminated. Because this series of steps seemed “speculative” to the Court, it found that the children’s injury was not “fairly traceable” to the IRS policy.

Of course, one could argue that each element in such a chain of causation is a factual, rather than logical or legal, issue, and that those elements ought to be decided by a factfinder (i.e., a jury). But the Court here felt comfortable felt that the total chain was too long and attenuated to satisfy the “fairly traceable” requirement.


Similar (if not analytically identical) to the “fairly traceable” requirement is the “redressability” requirement, which demands that the relief sought by the plaintiff would be “likely” to remedy his injury.

Chemerinsky, in his excellent Federal Jurisdiction supplement, uses Regents of the University of California v. Bakke as an example of an unusual finding of redressability. Bakke, a white man, sued the University after he was denied admission to UC Davis Medical School, arguing that the school’s policy of setting aside 16% of seats in the incoming class for minority candidates was discriminatory. You might think that a judgment in his favor would not be “likely” to remedy Bakke’s injury, because even without the set-aside program he was by no means guaranteed to get into medical school. But Bakke had standing to sue, the Court found, because he was denied the right to compete for all 100 slots in the med school class. So even though a ruling in his favor would not necessarily get him into medical school, it would get him the opportunity to compete, and thus redressability was satisfied.

Okay, fair enough. I’m not sure I buy it, but fair enough.

But what about in affirmative action cases where there is no racial set-aside? So, for example, in this year’s Fisher case, University of Texas sets aside the majority of its freshman seats for a non-racial reason (the Ten Percent program). The remaining seats are in open competition, where race is in some cases a factor, but only one factor. There are thus no missing seats that Abigail Fisher is denied the opportunity to compete for by a racial set-aside, and it’s by no means clear that Fisher would have gotten into UT even absent the consideration of race as a factor. So how could she show that a ruling in her favor would redress her injury?

Justices Ginsburg and Sotomayor asked more-or-less this question of Fisher’s attorney in oral arguments. Justice Ginsburg: “The injury — if the injury is rejection by the University of Texas, and the answer is, no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program?” (Note that Ginsburg frames the question in terms of causation — Chemerinsky points out that the Court, in practice, often collapses the “fairly traceable” and “redressable” requirements, and I think that’s what’s happening here.)

Fisher’s attorney responded, essentially, that Fisher was alleging a different injury. Not merely the rejection from the school, but “the use of a system which denied equal treatment. It was a Constitutional injury….” In other words, the same sort of “stigmatizing injury” as in Wright. Even if Abigail Fisher could not be made whole with regard to being admitted by the University, she could be awarded damages to compensate her for the stigmatizing injury of having been subjected to discrimination.

Several things seem to leap out here. First, it really matters what injury you choose to articulate, because the nature of the injury will affect the traceability and redressability elements, too.

Second, remedies play an important role. As we will see (I hope) in the next part of this experiment, carefully choosing the remedy can be vital to deal with the problem of mootness. One of Fisher’s problems is that she has already graduated from college, so even if she can show that she would have gotten into UT absent the affirmative action program, she is not in a position now, to re-apply. Thus, an injunction against the program does her no good. Her damages claim based on the stigmatizing injury, however, lives forever. (Subject to statutes of limitations, of course.)

Third, it may be that the Court is more comfortable finding standing in edge cases where an important constitutional right (equal protection) is asserted, rather than in edge cases where some more nebulous right is basis of the claim. (E.g., the environmental cases like Sierra Club and Lujan.) That is, perhaps a finding of standing sometimes reflects the importance the Court assigns to the right in question, more than the degree to which that right has been clearly injured. That said, the importance of the right doesn’t always get you a pass on standing, as Wright shows.

Finally, it should be stated that some general principles have grown out of the development of standing doctrine.

First, you generally can’t sue “as a citizen” or “as a taxpayer.” Mere interest in seeing the laws applied properly is not the kind of interest in which the Court is prepared to recognize any sort of remediable injury. This is partly because of the generic nature of the interest, and partly because of a separation-of-powers concern: it is the job of the Executive, not the courts, to see that the laws are faithfully executed. Thus “citizens” ought to address their generalized displeasure with government actions to that branch, through political channels.

One problem with this as a neat category is that Congress sometimes create very broad statutory rights. Under the Clean Air Act, for example, “any person” may bring suit “on his own behalf” against “against any person []including (i) the United States, and (ii) any other governmental instrumentality or agency… who is alleged to have violated… or to be in violation of… an emission standard or limitation under this chapter….” How this kind of “citizen suit” is different from the impermissible sort is not yet clear. (One can argue that the Act creates a sort of “statutory right” to clean air, and that someone can injure that right by emitting pollutants. Is this a satisfying distinction? Could Congress create a statutory right to good governance and thereby allow all citizen suits? Does the concreteness of air pollution do some work here?)

Second, you are usually, though not inevitably, barred from asserting other people’s rights for them. X can’t sue Y for breaching a contract with Z (in which X has no interest), purely to vindicate justice. Similarly, A cannot sue the government for discriminating against B on the basis of race. B must sue on her own behalf. The policy reasoning behind this is fuzzy, but there are, I think, two major concerns with “third-party standing,” as it is called. First, people may not advocate quite as zealously on behalf of a third party as they would on their own behalf. I’m not sure whether this is true — some public-interest organizations, like the ACLU, advocate for the rights of others with consistent zeal. A slightly better formulation of this concern might be that advocacy will be sharper where there are concrete facts, and a party knows best the facts of his own situation, not that of others.

Anyway, the second major objection to third-party standing is that the supposedly-injured party may, in fact, be quite happy with the situation. Perhaps Y and Z broke their contract for good reasons, known only to themselves, and both are satisfied with the outcome. Requiring parties to plead their own cases helps to ensure, at a minimum, that the person whose harm is being litigated actually feels injured.

However, in some cases — usually where the original party is unlikely or unable to sue for himself, and where you have a pecuniary interest in the outcome — you can assert someone else’s rights. So, for example, a liquor distributor has standing to challenge a sex-discriminatory minimum drinking age law on behalf of the young men subject to it, because the young men will almost always pass the drinking age by the time their suit reaches the Court. Similarly, a doctor may challenge a criminal law prohibiting the distribution of contraceptives to unmarried individuals, based on those individuals’ right to sexual privacy, because the individuals themselves would lack standing, as they were not subject to the criminal penalty.

Obviously, of course, parents and guardians may also sue on behalf of children and those otherwise incompetent to sue. This is only true, however, where the relationship is clear; the Court has denied standing to a non-custodial parent whose familial rights were in dispute at the time.

And you can sue on other people’s behalf in special cases involving First Amendment challenges to statutes that are “overbroad,” meaning they restrict more speech than necessary to achieve legitimate goals. If the statute
restricts too much speech, you can sue to have it struck down, even if your speech could be legitimately restricted, as long as it restricts somebody’s protected speech. Thus, to take a silly example, suppose you are arrested for falsely shouting “Fire!” in a crowded theater. If you are arrested under a narrowly-tailored law that only forbids such false and dangerous speech, you are likely out of luck. But if you are arrested under an overbroad law that forbids speech in theaters entirely, you may sue, essentially, on behalf of Nathan Lane, Sutton Foster, and anyone else who might like to legitimately speak on the stage.

Finally, where statutory rights are involved, the injury must fall within the “zone of interests” contemplated by the statute invoked. What does this mean? I am not entirely sure; my notes state it as a bare fact, without much explication. Chemerinsky calls it “particularly confusing” and suggests that it may only apply in suits brought under the Administrative Procedures Act. In at least one case, Bennett v. Spear, it has been suggested that Congress may override the zone-of-interests requirement by creating a sufficiently broad cause of action — generally, using the “any person” language. You now know everything I know about the zone-of-interests test.

So this seems like a good place to stop. I hope to write about mootness, ripeness, and political questions by tomorrow, and then to move on to the thrilling world of congressional control over federal court jurisdiction!

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6 Responses to blogging Fed Courts 1: Article III courts, standing

  1. Pingback: blogging Fed Courts 1.5: standing outline | The Handsome Camel

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