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72 Florida Law Review 741 (2020)


The requirement of standing to sue in federal court is familiar, but the related requirement of standing to appeal within the Article III judiciary is badly undertheorized. The Supreme Court’s opinions suggest (at least) four constitutional rationales. Standing to appeal might serve the same functional purposes as standing to sue, or it might follow from the fact that appeals involve two separate courts, or it might be triggered because the underlying case or controversy has become moot, or because it has reached the point of final judgment.

Compounding the confusion, the requirement of standing to appeal can have troubling consequences in the cases in which it arises most frequently: when state officials refuse to defend state law against constitutional attack and decline to appeal from an adverse judgment. In an era of political polarization, state attorneys general increasingly find it tempting to abandon the defense of laws supported by the opposing party. Standing doctrine makes that situation worse, affording state officials the opportunity to short-circuit appellate review for self-serving or partisan reasons.

After critically examining the possible constitutional theories, this Article concludes that the requirement of standing to appeal is best explained by the finality of the judgment and the conclusion of the underlying “case” or “controversy.” On that account, however, Congress is not powerless to facilitate appellate review, even in the absence of an appeal by an injured party. Congress plays a primary role in determining when a legal judgment becomes final, and it already postpones the point of finality through a wide range of procedural devices. Consistent with the Constitution, Congress could provide for automatic appeals by operation of statute, for example, whenever a district court enters an injunction against the enforcement of state law, or for judge-initiated appeals in the discretion of the appellate court, on its own motion or at the suggestion of the district court or a party.