Several scholars that I respect urged me to look at the Supreme Court’s most recent standing decisions to decide whether I agree with their belief that they signal a major change in the way the Court decides standing cases. This essay summarizes the results of my review of those decisions. I have long considered standing doctrine to be incoherent, inconsistent, and unprincipled. The Justices use standing to further a wide variety of goals that are logically unrelated to standing.^[1] The Court’s recent decisions have not changed my opinion.

In Collins v. Yellen,^[2] the conservative majority relied on a relaxed version of standing doctrine that allowed them to hold that shareholders in Fannie Mae and Freddy Mac had standing to argue that the statutory restriction on the power of the president to remove the head of the Federal Housing Finance Administration was unconstitutional. This was not a surprise. The conservative majority has long made it clear that it is determined to announce and apply new constitutional law doctrines that allow it to restructure the government by creating more “officers” and making it easier for the president to remove many government officials. It has also made it clear that it will not allow doctrines like ripeness, finality, exhaustion or standing to get in the way of its implementation of that important ideological agenda.^[3]

The Collins majority then applied an interesting new version of the traceability component of the standing test as the basis for a holding that, while the shareholders had standing to make their argument, they were highly unlikely to obtain any real remedy as a result of their victory. The majority remanded the remedy question to the lower court with instructions to provide the shareholders a remedy for the violation of their constitutional rights only if the court finds a causal relationship between the violation of their rights and some agency action that caused an injury to the shareholders. The majority strongly suggested that the court could find such a causal relationship only in the highly unlikely event that it finds that the president would have removed the head of the agency for taking the action that injured the shareholders if he believed that he had an unrestricted power to remove the head of the agency.

We are likely to see more opinions on remedies like the opinion in Collins. The conservative majority is in the early stages of the process of learning that their radical campaign to restructure the government has the potential to create enormous practical problems. As those problems begin to become apparent, the conservative majority must find innovative ways of continuing their restructuring campaign without creating intolerable practical problems.

The opinion in U.S. v. Arthrex^[4] illustrates this trend. The majority first concluded that Administrative Patent Judges (APJs) would be principal officers if the majority applied its precedents to APJs because their decisions are not reviewable by any principal officer. The majority then seemed to realize that such a holding would create serious problems by adding several hundred more people to the long list of people who require Senate confirmation when the Senate is already experiencing great difficulty performing its duty to decide whether to confirm nominees for office. It avoided that unacceptable result by taking the radical step of amending the statute to confer on the head of the Patent and Trademark Appeal Board the power to review decisions of APJs—a power that Congress never granted the head of the Board. That judicial rewriting of the statute allowed the majority to hold that the APJs are inferior officers because their decisions are subject to review by a principal officer.

In Uzuegbunam v. Prezenski,^[5] the Court held that the potential to obtain nominal damages is sufficient to satisfy the requirement that an injury must be redressable to qualify a plaintiff for standing when the plaintiff alleges a violation of his rights to free speech and religion. Yet, the Court has held that the potential to be awarded many thousand dollars in legal fees is not sufficient to qualify as redress for an injury to a plaintiff’s ability to protect his health.^[6] It seems clear that a majority of Justices believe that it is more important to protect individuals’ rights to speech and religion than to protect their rights to protect their health. That is a defensible value judgment, but it has no logical relationship with the question of who has standing to sue or what it takes to redress an injury.     

In Transunion v. Ramirez,^[7] a five-Justice majority held that people whose credit reports contained false statements that strongly suggest that they are terrorists lacked standing to sue the company that negligently prepared the reports. The majority held that the victims of the false reports suffered no “concrete” injury because the company that negligently prepared the reports had not yet provided them to a third party. As a result, the plaintiffs could not maintain a cause of action against the company even though Congress had clearly and explicitly authorized anyone who is the subject of a false credit report to sue the company that was responsible for the false report.

Some people believe that this opinion is an unequivocal and durable holding that Congress cannot create standing to sue for violation of a statutory right unless a court finds that violation of the statute causes a “concrete” injury to the victim of the violation. I am skeptical that the opinion will bear that meaning over time for two reasons.

First, as the cases discussed in the dissenting opinion illustrate, the Court has issued many opinions that address the question whether Congress can create a cause of action for violation of a statute. Those opinions are not a model of consistency.  At least two of the Court’s prior opinions seem to stand for the proposition that Congress has the power to create standing by creating a statutory right and conferring standing to vindicate that right on a private party who is injured in some way as a result of a violation of the right created by the statute^[8] — the opposite of the holding in Transunion. I suspect that the Transunion opinion will become just one more of the many inconsistent opinions that address the issue.

Second, Justice Thomas wrote a dissenting opinion in Transunion that attacks the reasoning of the majority in ways that will make it difficult to defend the reasoning and holding of the case over time. He explained why the defendant’s action violated three private rights held by the plaintiffs. He then accused the majority of making up the requirement that an injury must be “concrete” to qualify a plaintiff for standing. The case or controversy clause in Article III contains no reference to the need to vindicate a right that a court considers to be “concrete.” He concluded by accusing the majority of judicial aggrandizement based on its view that a court can decide that an injury to a private right is not important enough to support a lawsuit when Congress has decided that the injury is sufficiently important to give rise to a case or controversy that a court can resolve.

In California v. Texas,^[9] the Court held that standing precluded the Court from deciding whether the Affordable Care Act (ACA) was unconstitutional after Congress amended it by eliminating its potential to raise revenue, thereby arguably undermining the sole basis on which the Court had earlier held that Congress had the power to enact the ACA. The majority held that none of the states and none of the individuals who sought to challenge the validity of the amended statute were injured by the amendment that eliminated the potential for the statute to raise revenues. The majority declined to consider the argument that the statute as amended injured the states or individuals. As the two dissenting Justices pointed out, that was the appropriate question to ask for purposes of deciding whether the states or individuals had standing to argue that the amended statute was unconstitutional, and it was easy to conclude that the amended statute injured both the individuals and the states.

The majority opinion in California v. Texas is peculiar in another way as well. In Massachusetts v. EPA,^[10] the Court held that standing has “special solicitude” for states. It went on to hold that Massachusetts had standing when an individual, association or corporation would not have had standing. The dissenting Justices relied in part on the special status of states that the Court had previously recognized, but the majority ignored that part of standing law entirely without even bothering to explain why they did not extend “special solicitude” to the states that sought to challenge the constitutionality of the amended ACA. The majority opinion leaves us with no way of knowing whether the special status of states in standing disputes is gone permanently or has only lapsed briefly for purposes of this case.

If the majority’s reasoning and holding on standing in California v. Texas was based on a result-oriented distortion of standing law, as I believe, that raises an obvious question: why did the majority rely on a distorted version of standing law to dispose of the case. I have an easy answer. The Court wanted to avoid the nasty debate among the Justices about the constitutionality of the ACA that would have been inevitable if it had held that the anyone had standing to challenge the constitutionality of the amended ACA. That debate would divide the Justices along political lines, thereby giving more ammunition to the critics of the Court who see the Court as a purely political institution. Moreover, such a debate would not change the outcome of the case because the Justices who argued that the amended statute was unconstitutional would then have relied on the Court’s standard method of resolving severability disputes as the basis for a holding that the amendment could be severed from the rest of the statute, thereby leaving the ACA in effect.

In Department of Commerce v. New York,^[11] the Court held that a court can decide whether an alleged future injury qualifies for standing by applying either of two tests—the nearly-impossible-to-satisfy “certainly impending” test that the Court announced in Clapper v. Amnesty International^[12] or the easy-to-satisfy “substantial risk” of occurrence test that preceded Clapper. Why would the Court give lower courts a choice between applying an easy-to-satisfy test or a nearly-impossible-to satisfy test to resolve an important issue that arises in many standing cases?

That question is easy to answer based on the facts of Clapper. Journalists sought to challenge the constitutionality of a government surveillance system. They argued that they had standing because the surveillance system interfered with their rights by discouraging sources of information from talking to them. The government took the position that the surveillance system did not exist, and that any future injury that might be caused by such a system was too speculative to support standing. In that context, the Court applied the new “certainly impending” test as the basis for its holding that it could not decide whether the surveillance system was constitutional.

The reason the Court announced and applied an impossible-to-satisfy test in Clapper is obvious. The Court did not want to decide whether the surveillance system was illegal. The Justices must have been embarrassed a few months after the Clapper decision when the government publicly acknowledged that it had been implementing the surveillance system for years at the time that the Court questioned its existence and characterized its harmful effects as unduly speculative. By the time the Court decided Department of Commerce v. New York, the Court had reconsidered the Clapper test and decided to return to the pre-Clapper test.

That takes me to the Court’s most recent foray into standing law. On September 1, 2021, s five-Justice majority refused to issue a stay that would have temporarily precluded Texas from implementing a new statute that had the immediate effect of banning all abortions after the first six weeks of a pregnancy.^[13] The statute accomplished that result by authorizing anyone to file a civil action against anyone who “aids or abets” the performance of such an abortion in a state court and instructing the state judge to award $10,000 in damages in each such case.

The actual reason for the decision is obvious. The five Justices who refused to stay implementation of the statute oppose abortion. They were content to allow a state to implement a statute that is clearly inconsistent with Roe v. Wade^[14] without incurring the wrath of the majority of the public that favors a right to abortion by overturning Roe.

The majority accomplished that result by saying that it was not addressing the merits of the case. In a strange one paragraph opinion, the majority referred to “procedural problems” that precluded it from staying implementation of the statute. The majority did not refer to standing, but it cited Clapper and quoted the “certainly impending” test in a parenthetical following that citation.  That citation implies that the majority could not stay implementation of the Texas statute because no petitioner could satisfy the test to determine whether they have standing based on a future injury.

There are two problems with the reasoning of the majority in the Texas abortion case. First, the Clapper test is irrelevant after the Court’s decision in Department of Commerce v. New York. A petitioner who relies on an alleged future injury as the basis for standing needs only to satisfy the easy-to-satisfy pre-Clapper test by showing that there is a “substantial risk” that the petitioner will suffer a future injury.

Second, it is easy to show that anyone who is over six weeks pregnant who wants an abortion in Texas was injured immediately by implementation of the Texas statute. Clinics that had scheduled such abortions immediately announced that they would no longer provide such abortions and turned away patients who were scheduled for the procedure.

It is obvious that the majority’s reliance on standing to bar anyone from challenging the constitutionality of the Texas abortion statute was a fabrication. The majority hoped to use a distorted version of standing law to explain why it was acting in a way that makes it impossible for a woman who is more than six weeks pregnant to obtain an abortion without having the courage to overrule Roe v. Wade. It will be interesting to see how the Court reacts to a request to stay a state statute that authorizes anyone to obtain $10,000 in civil damages from anyone who owns a gun.

The Texas abortion statute raises an obvious standing problem of a completely different type. Any person who files a civil action for damages against someone who aids or abets an abortion because the plaintiff disapproves of abortion would have no chance of satisfying the requirement that they have suffered a “particularized” injury. Thus, any such suit would be dismissed based on lack of standing if it was brought in a federal court. Article III does not apply in state courts, however, and it is highly unlikely that the elected members of the Texas Supreme Court will refuse to give effect to the Texas statute based on standing.

If you want to watch a lively debate about the meaning and significance of the Supreme Court’s recent standing decisions, you can do so by “attending” the session on standing at the Fall symposium of the ABA Section on Administrative Law and Regulatory Practice that will be held virtually on November 18 and 19.            

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^[1] See Pierce, Is Standing Law or Politics, 77 U.N.C. L. Rev. 1741 (1999).

^[2] 141 S. Ct. 1761 (2021).

^[3] See, e.g, Free Enterprise Fund v. PCOAB, 561 U.S. 477 (2010) (announcing and applying a special exception to the exhaustion, finality and ripeness requirements applicable to challenges to the structure of an agency.   

^[4] 141 S.Ct. 1970 (2021).

^[5] 141 S.Ct. 792 (2021).

^[6] Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).

^[7] 141 S.Ct. 2190 (2021).

^[8] FEC v. Akins, 524 U.S. 11 (1998); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)..

^[9] 141 S.Ct. 2104 (2021).

^[10] 549 U.S. 497 (2007).

^[11] 139 S.Ct. 2551 (2019).

^[12] 568 U.S. 398 (2013).

^[13] Whole Woman’s Health v. Jackson. Docket No. 21A24 (2021).

^[14] 410 U.S. 113 (1973).