Standing Summary

Unlike the other federal justiciability doctrines mootness, ripeness, political question, and the ban on advisory opinions standing focuses primarily on the party bringing an issue before the court and only secondarily on the issues the party seeks to adjudicate. To have standing, any litigant raising an issue in federal court must meet three constitutionally mandated requirements: injury, causation, and redressability. In addition, the Supreme Court has imposed nonconstitutional, or “prudential,” restrictions, prohibiting third-party claims and generalized grievances. Plaintiffs challenging agency action under a federal statute must satisfy a third prudential requirement: The rights they are attempting to vindicate must fall within the “zone of interests” protected by the statute. The so-called prudential requirements, not being constitutionally mandated, may be waived by Congress.

A variety of reasons have been articulated by the Court and by scholars for the standing requirements. By requiring that a plaintiff have a personal stake in the outcome of a case, standing was said in Baker v. Carr[case]Baker v. Carr[Baker v. Carr] (1962) to improve judicial decision making by ensuring the “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions”; it is also said to promote judicial efficiency by preventing a deluge of lawsuits brought by persons with nothing more than a political or ideological interest in the outcome. By ensuring that plaintiffs can litigate only their own rights, standing is said to promote fairness by excluding meddlers who may be trying to protect the interests of those who do not want or feel the need for such protection. Finally, and probably most important, standing limits the availability of judicial review of congressional and executive decisions and thus promotes the separation of powers, which the Court has called the “single basic idea” of standing in Allen v. Wright[case]Allen v. Wright[Allen v. Wright] (1984).

As a jurisdictional requirement, standing cannot be waived by the parties; even when the defendant does not raise it, the court may do so sua sponte, or voluntarily, at any stage of the proceedings, even on appeal. If a decision is ultimately made against standing, the case is dismissed, even if the matter has already been decided on the merits by the trial court and has gone through one or two appeals.

The Court ruled that a plaintiff must “show he personally has suffered some actual or threatened injury” in Valley Forge Christian College v. Americans United for Separation of Church and State[case]Valley Forge Christian College v. Americans United for Separation of Church and State[Valley Forge Christian College v. Americans United for Separation of Church and State] (1982). The requirement ensures the existence of an actual dispute between litigants and is at the heart of the standing doctrine. The “personal” component was emphasized in Sierra Club v. Morton[case]Sierra Club v. Morton[Sierra Club v. Morton] (1972), where the Court denied standing in an environmental case to an organization that had failed to allege that any of its members had used the land threatened by the challenged governmental policies and therefore could not show any injury to the members. The “actual or threatened” component was explained in City of Los Angeles v. Lyons[case]City of Los Angeles v. Lyons[City of Los Angeles v. Lyons] (1983). A black man who had been injured when subjected to a choke hold by police officers was permitted to sue for damages, but he was denied standing to seek an injunction against future use of the life-threatening choke hold by police officers because he could not show that he himself was likely to be subjected to it again.

No rule or defining principle exists to determine what kind of injury will satisfy standing. However, clearly injuries to common law (personal injury, contract, property), constitutional, and statutory rights are sufficient to confer standing. In addition, the court has recognized the fact or threat of criminal prosecution (Wisconsin v. Yoder, 1972), economic harm (Barlow v. Collins, 1970), and injury to aesthetic interests (Lujan v. Defenders of Wildlife, 1972). Injuries that the court has held insufficient to afford standing include stigmatization by a governmental policy of granting tax-exempt status to private schools that discriminate on the basis of race (Allen v. Wright) and a threat to marital happiness because state abortion laws force a choice between refraining from normal sexual relations and endangering the wife’s health (Roe v. Wade, 1973).

Mere existence of an injury is not enough. A plaintiff must also show that the injury was caused by the governmental action of which he or she complained and is likely to be redressed by the requested relief. Originally treated as a single test in which one or the other must be proved in Warth v. Seldin[case]Warth v. Seldin[Warth v. Seldin] (1975), causation and redressability later became two separate tests, each of which must be established, in Allen v. Wright. The concepts are closely enough related that ordinarily either both or neither will be met. Simon v. Eastern Kentucky Welfare Rights Organization[case]Simon v. Eastern Kentucky Welfare Rights Organization[Simon v. Eastern Kentucky Welfare Rights Organization] (1976), for example, involved a challenge to an Internal Revenue Service (IRS) regulation reducing the amount of free medical care that tax-exempt hospitals were required to provide. Plaintiffs argued that they were injured by the denial of needed medical care. The Court nevertheless denied standing because it was “purely speculative” whether the plaintiffs’ loss of medical services could be traced to the IRS ruling and because there was no substantial likelihood that victory in the case would ensure the plaintiffs received the hospital care they sought.

The legal rights and interests asserted must be those of the plaintiff, not those of a third person not a party to the lawsuit. In Warth v. Seldin, taxpayers of Rochester, New York, sought to challenge allegedly discriminatory zoning in the suburb of Penfield, alleging that they were injured by higher property-tax rates resulting from Rochester’s need to provide additional low-income housing. The Court refused to allow the Rochester taxpayers to assert the constitutional rights of low-income minorities allegedly excluded from Penfield.

Four well-established exceptions exist. First, a third-party claim will be allowed when the third party is unlikely to be able to sue or have an incentive to do so. In Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965), a physician charged with distributing contraceptives to a married couple was permitted to raise the substantive due process rights of the couple, and in Powers v. Ohio[case]Powers v. Ohio[Powers v. Ohio] (1991), a black criminal defendant convicted by an all-white jury was permitted to raise the rights of black jurors excluded from the jury. Second, a third-party claim may also be allowed when there is a close relationship between the plaintiff and the third party. In Pierce v. Society of Sisters[case]Pierce v. Society of Sisters[Pierce v. Society of Sisters] (1925), a religious school was permitted to raise the constitutional rights of its students and their parents when the state attempted to require that children attend public school. Third, an association will be permitted to assert the rights of its members, as in National Association for the Advancement of Colored People v. Alabama[case]National Association for the Advancement of Colored People v. Alabama[National Association for the Advancement of Colored People v. Alabama] (1958).

A fourth exception to the third-party rule is the overbreadth doctrine. In First Amendment cases, a litigant has been permitted to make a facial challenge to a statute even though the law, if narrowly construed, could constitutionally prohibit the litigant’s activity. Such a facial challenge is permitted when the law appears to be overly broad and thus possibly having a chilling effect on constitutionally protected activity. In Schad v. Borough of Mount Ephraim[case]Schad v. Borough of Mount Ephraim[Schad v. Borough of Mount Ephraim] (1981), an adult bookstore was prosecuted for presenting nude dancing in an area where the zoning laws excluded all live entertainment. The Court, even while assuming that nude dancing was not protected by the First Amendment, still allowed the store owner to raise in defense the First Amendment rights of others to present constitutionally protected live entertainment.

The Court will ordinarily deny standing when a plaintiff’s only injury is as a taxpayer or citizen asserting an interest in having the government obey the law. In Frothingham v. Mellon[case]Frothingham v. Mellon[Frothingham v. Mellon] (1923), the Court denied standing to a taxpayer who challenged the constitutionality, under the Tenth Amendment, of the Federal Maternity Act of 1921. Although the improper expenditure of taxpayers’ money may arguably amount to an injury to an individual taxpayer, her interest was “comparatively minute and indeterminable.” In Schlesinger v. Reservists Committee to Stop the War[case]Schlesinger v. Reservists Committee to Stop the War[Schlesinger v. Reservists Committee to Stop the War] (1974), the Court held that plaintiffs in their capacity as U.S. citizens lacked the capacity to challenge, under Article I, section 6, of the Constitution, the practice of allowing members of Congress to hold commissions in the armed forces reserves. In Flast v. Cohen[case]Flast v. Cohen[Flast v. Cohen] (1968), the Court created a narrow exception by allowing standing when the taxpayer alleged that Congress was violating a particular constitutional prohibition, such as the establishment clause of the First Amendment, rather than merely exceeding its delegated powers, as in Frothingham.

In cases where a claim is brought under a federal statute and the plaintiff is not directly subject to the contested regulatory action, the Court has established an additional requirement: that the right or interest the plaintiff is attempting to vindicate be within the zone of interests protected or regulated by the statute. The Court stated in Clarke v. Securities Industries Association[case]Clarke v. Securities Industries Association[Clarke v. Securities Industries Association] (1987) that the zone-of-interests requirement is not meant to establish a high barrier for plaintiffs and that it is the defendant who bears the burden of proving the congressional intent to preclude judicial review in such cases. This is an example of a congressional waiver of a prudential requirement. The Court’s willingness to find standing to challenge an administrative action under a statute, while it would likely deny standing to such a general claim brought under the Constitution, is a reflection of the Court’s concern with judicial restraint and its proper role vis- -vis the other branches.

Standing is among the most analyzed and most criticized of judicial doctrines. The Court’s treatment of it over the years has been called incoherent, erratic, and bizarre. It has even been suggested that there should be no standing doctrine at all, that the question of standing is part of the merits of the litigant’s claim. Much of the problem stems from the Court’s inability to develop a consistent philosophy of standing and to relate it to a view of the proper role of the judiciary in a system of checks and balances and of the proper role of a national judiciary in a federal system. Although there is much to be said for the efforts of, particularly, the Burger Court (1969-1986) to respect the separation of powers and to avoid unnecessary judicial intervention in the affairs of the other branches of government, it should be recognized that an overly narrow view of standing will deny legitimate litigants their day in court.

• Fairly detailed surveys of the standing doctrine may be found in the standard general treatises on U.S. constitutional law. A particularly comprehensive and useful example is the four-volume work by Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and Procedure (2d ed., Vol 1., St. Paul, Minn.: West Publishing, 1992). A briefer review is available in Rotunda and Nowak’s one-volume edition, Constitutional Law (7th ed., St. Paul, Minn.: Thomson/West, 2004). Other reliable single-volume treatises include Erwin Chemerinsky’s Constitutional Law, Principles and Policies (New York: Aspen Law & Business, 1997) and Charles Alan Wright’s The Law of Federal Courts (St. Paul, Minn.: West Publishing, 1994). Lawrence H. Tribe’s American Constitutional Law (3d ed., Mineola, N.Y.: Foundation Press, 2000) offers a somewhat different organizational perspective.
• Most of the serious analysis and criticism of the doctrine is to be found in the law reviews. Among the more interesting and influential commentaries is Antonin Scalia’s defense (before he became a Supreme Court justice) of a narrow concept of standing in “The Doctrine of Standing as an Essential Element of the Separation of Powers,” Suffolk Law Review 17 (1983), and two arguments for a broader approach, Mark Tushnet’s “The New Law of Standing, a Plea for Abandonment,” Cornell Law Review 62 (1977) and William Fletcher’s “The Structure of Standing,” Yale Law Journal 98 (1988). A wellreasoned critique of the ban on generalized grievances can be found in Donald Doernberg’s “We the People: John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action,” California Law Review 73 (1985). A particularly interesting and creative proposal helped to shape the view of a generation of law students: Christopher D. Stone, “Should Trees Have Standing?--Toward Legal Rights for Natural Objects,” Southern California Law Review 45 (1972).

Advisory opinions

Judicial review

Political questions

Restrictions on court power

Separation of powers