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Document Type

Article

Publication Date

Spring 2012

Publication Citation

87 Indiana Law Journal 552 (2012)

Abstract

The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem cell research.

What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas.

But, as some scholars have shown, a version of narrow standing helped liberals protect New Deal legislation in the 1930s and 1940s. Perhaps, if the doctrine keeps both liberals and conservatives out of court, liberals will find less to criticize in the doctrine. But if one truly believes that the federal courts should be open to more plaintiffs, one should see that these cases present a strange-bedfellows moment that might persuade a majority of the Court to alter existing standing doctrine. Liberal members of the Court generally advocate for a more expansive doctrine of standing; conservative members of the Court usually support restrictive standing doctrine, but their interest in reaching the merits of certain cases may lead them to agree to certain reforms. In this Article I address that prospect as well as the possibility that Congress might enact legislation to force the standing question.

If the Court seizes the opportunity to reform standing doctrine, what are its options? Will changes to the doctrine affect all plaintiffs? Or are these recent examples of conservative impact litigation different in kind from the cases that generated current standing doctrine? In answering these questions, I review recent suggestions for amending the doctrine. I conclude that these new conservative cases are lamentably unlikely to lead to much change in the law of standing.