Legislative standing is litigated with increasing frequency,1 and yet it is characterized by “various ad hoc pronouncements” amounting to “a grab bag of inconsistent rationales that offer little guidance to litigants and lower courts.”2 The doctrine encompasses “a multitude of distinct and unrelated types of claims that have little in common other than the presence of a legislative litigant.”3 According to one observer, failure to adequately distinguish between these claims has created “a mess.”4
Last Term, in Virginia House of Delegates v. Bethune-Hill (Bethune-Hill II),5 the Supreme Court held Virginia’s House of Delegates did not have standing to appeal a decision that its legislative districts were unconstitutional.6 In dissent, Justice Alito critiqued the majority for what he saw as an impermissible blurring between congressional standing and state legislative standing, the former of which implicates separation-of-powers concerns that, he argued, are not present in the latter.7 If Justice Alito were correct that separation-of-powers concerns only impact congressional standing, then such standing would always be harder to achieve than state legislative standing — assuming otherwise similar circumstances8 — and Bethune-Hill II could easily be extended to congressional standing cases. However, while Justice Alito’s concern about blurred lines has merit, his critique is ultimately misguided. Justice Ginsburg’s majority opinion relied on state legislative standing cases, and the congressional standing cases she cited are not necessary for her conclusion. Further, the Court has previously characterized separation of powers in this context as a limit on federal judicial power, rather than legislative. These judicial separation-of-powers concerns are certainly relevant to state legislative standing questions in federal court. The difference between state and federal legislative standing is important, but it is not as simple as Justice Alito argued. Courts should therefore be cautious in extending Bethune-Hill II to the federal context.
After the 2010 Census, Virginia’s state legislature redrew the state’s legislative districts.9 One stated goal in the process was compliance with section 5 of the Voting Rights Act10 (VRA) and its prohibition of retrogression in the ability of minority communities to elect their candidates of choice.11 In an effort to achieve this goal, legislators ensured that twelve House districts had black voting-age populations of at least fifty-five percent.12 The maps were passed by the legislature and received preclearance from the U.S. Department of Justice.13
Shortly after, several voters sued in federal court, alleging an Equal Protection Clause violation.14 Although the suit was brought against other state entities, the House of Delegates and its Speaker intervened to defend the districts.15 A three-judge district court panel16 ruled for the State, finding race was not the predominant factor in drawing eleven of the twelve districts, and in the twelfth, the use of race was narrowly tailored to further a compelling interest in avoiding retrogression.17
On appeal, the Supreme Court, in an opinion by Justice Kennedy, upheld the lower court’s ruling on the twelfth district but vacated and remanded in regard to the other eleven districts.18 It held that compliance with traditional redistricting principles alone cannot disprove racial gerrymandering.19 The proper standard requires a court to consider all available evidence and decide whether race was the “predominant motive for the design of the district as a whole.”20 The Court remanded this question to the district court.21
After a new bench trial, the district court panel found that race had been the predominant factor in the eleven districts, and “the intervenors ha[d] not [shown] that the legislature’s use of race was narrowly tailored to achieve the compelling state interest of compliance with Section 5 of the VRA.”22 Thus, the map violated the Equal Protection Clause. However, the court gave the legislature a chance to draw new maps.23 Virginia’s Attorney General subsequently announced that the State would not appeal the decision; however, the State House filed its own appeal.24 The State defendants moved to dismiss the appeal, arguing that the intervenor House did not have standing to challenge the lower court’s decision.25 Further, when the legislature failed to pass a new plan by the court’s deadline, “that court entered a remedial order delineating districts for the 2019 election.”26 The House appealed that order as well, and the defendants again moved to dismiss.27
The Supreme Court granted the motions to dismiss, holding that the intervening House of Delegates did not have standing to appeal.28 Writing for the Court, Justice Ginsburg29 noted the basic requirements of Article III standing: “a concrete and particularized injury, that . . . is fairly traceable to the challenged conduct, and . . . is likely to be redressed by a favorable decision.”30 To appeal a decision the primary party has declined to challenge, an intervenor must independently demonstrate standing.31 Justice Ginsburg concluded that the House, “a single chamber of a bicameral legislature,” did not have standing either as a representative of the state’s interests or independently.32
Justice Ginsburg began by rejecting the House’s argument that it could step in for the State.33 Had the State designated the House to appeal on its behalf and had the House asserted the State’s interests, standing could be transferrable — however, neither occurred.34 Virginia law gives the state attorney general the exclusive responsibility to represent the State in civil litigations.35 And “the House never indicated in the District Court that it was appearing” as the State’s representative — rather, “[t]hroughout this litigation, the House has purported to represent its own interests.”36
Next, Justice Ginsburg rejected three arguments put forward by the House asserting it had suffered an injury sufficient to merit standing on its own behalf. First, the House was not injured simply because of “its role in enacting redistricting legislation.”37 Under the state constitution, the entire legislature controls redistricting — not the House alone.38 This fact differentiates the case from Arizona State Legislature v. Arizona Independent Redistricting Commission,39 where the Court allowed “the Arizona House and Senate — acting together — to challenge” the creation of an independent redistricting commission by popular initiative.40 And that popular initiative “permanently deprived the legislative plaintiffs of their role in the redistricting process,”41 whereas this court order only altered the current maps.42 Justice Ginsburg also distinguished Coleman v. Miller,43 in which the Court allowed twenty state legislators to challenge the allegedly illegal ratification of an amendment they had voted against.44 Unlike Coleman, Bethune-Hill II did not involve a question of whether legislators’ votes had been nullified, despite having been sufficient to block the legislative act.45 The Court analogized Bethune-Hill II to a congressional standing case, Raines v. Byrd,46 writing that “[j]ust as individual members lack standing to assert the institutional interests of a legislature, . . . a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.”47
Second, the House was not injured by virtue of “altered district boundaries [that] may affect its composition.”48 Justice Ginsburg distinguished Sixty-Seventh Minnesota State Senate v. Beens,49 where the Court allowed the Minnesota Senate to challenge a district court order almost halving the Senate’s size, which would have directly impacted its day-to-day operations.50 Here, in contrast, “the House as an institution has no cognizable interest in the identity of its members.”51 Justice Ginsburg also rejected the dissent’s analogy of the House to a basketball team or string quartet, organizations that select their own members; in contrast, the House is a “representative body . . . chosen by the people.”52
Third, Justice Ginsburg dismissed the notion that “causing legislators to seek reelection in districts different from those they currently represent” constituted an injury.53 District boundaries are changed regularly — every ten years.54 Indeed, the Virginia state constitution explains how to handle such changes.55 Therefore, there should be “no representational confusion.”56 “In short,” Justice Ginsburg concluded, “Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.”57
Justice Alito dissented.58 He argued the House had suffered a “fundamental” injury in fact sufficient to invoke Article III standing, focusing on the second of the House’s three arguments for its injury.59 Justice Alito wrote, “[w]hen the boundaries of a district are changed, the constituents and communities of interest present within the district are altered . . . [and t]he cumulative effects of all the decisions that go into a districting plan have an important impact on the overall work of the body.”60 “Districting matters.”61 The House, Justice Alito explained, is like a string quartet or basketball team, each of which has a legitimate interest in how its members are chosen and who those members are.62 Justice Alito argued that “even if the effect of the court order was greater in Beens than it is here, it is the existence — not the extent — of an injury that matters for purposes of Article III standing.”63
Finally, Justice Alito accused Justice Ginsburg of disregarding traditional standing requirements,64 and instead relying on “some other, only-hinted-at reason”: Raines v. Byrd and the “federal separation-of-powers concerns” it raised.65 He pointed to the Court’s citation of Raines’s requirement of a “judicially cognizable” injury, and cited to briefs by the United States, writing as an amicus, and the State, which drew analogies to federal separation of powers.66 Justice Alito called such arguments “seriously flawed because the States are under no obligation to follow the Federal Constitution’s model.”67 Rather, “separation of powers (or the lack thereof) under a state constitution is purely a matter of state law.”68
In his closing paragraphs, Justice Alito implied that Justice Ginsburg’s majority opinion was subtly — but crucially — influenced by separation-of-powers concerns that only exist at the federal level, where courts must consider the Constitution’s limits on legislative power. Justice Ginsburg did not respond to this assertion, and her opinion did not differentiate between state and federal standing. However, the critique misses the mark for three reasons. First, Raines was not necessary to Justice Ginsburg’s argument. Second, Raines did not rely on separation-of-powers concerns as characterized by Justice Alito. It was aimed to limit the judiciary’s power rather than the legislature’s. Third, this concern for the proper role of federal courts should be present in state legislative standing cases as well as in congressional standing cases. Under Justice Alito’s model, where congressional standing is consistently harder to establish than state legislative standing, Bethune-Hill II might bar a single house of Congress from asserting standing in a similar situation. However, given the weaknesses of that model, courts should be cautious in extending the holding to the federal context.
The first problem with Justice Alito’s critique is that Justice Ginsburg’s conclusion did not require Raines, but rather rested on state legislative standing cases and traditional standing requirements. She merely analogized to Raines. Justice Alito was clearly correct that Justice Ginsburg’s opinion did not explicitly express whether it ought to be applied to congressional standing.69 However, in her analysis of the House’s claim, Justice Ginsburg distinguished Bethune-Hill II from a series of state legislative standing cases in which the Court allowed standing,70 writing “[t]his Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.”71 Justice Ginsburg distinguished one such case the House had cited, Vesilind v. Virginia State Board of Elections,72 reasoning that although the House had intervened as a defendant there, it was defending a favorable decision on appeal, as opposed to attempting to invoke a court’s jurisdiction.73 Therefore, standing was not required. Justice Ginsburg also differentiated a prior Supreme Court decision that New Jersey’s legislature “had authority under state law to represent the State’s interests,” because the state law in that case had no provision similar to the Virginia law vesting the state attorney general with the exclusive authority to represent the State in civil suits.74
Indeed, the “judicially cognizable” language from Raines that Justice Alito so objected to was also used in Lujan v. Defenders of Wildlife,75 which did not involve legislative standing.76 As articulated in Raines, a “judicially cognizable” injury requires “an invasion of a legally protected interest which is . . . concrete and particularized,”77 and “traditionally thought to be capable of resolution through the judicial process.”78 Neither of these requirements necessarily hinges on the presence of a federal legislative actor.
The second weakness in Justice Alito’s critique is that Raines’s characterization of separation of powers is focused on limiting the judiciary’s power, as opposed to the legislature’s. Chief Justice Rehnquist authored the majority opinion in Raines, holding that a group of congressmen did not have standing to challenge a federal law because they failed to allege a “personal, particularized, concrete, and otherwise judicially cognizable” injury.79 He wrote that “the law of Art. III standing is built on a single basic idea — the idea of separation of powers,”80 which he defined as the “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere.”81 It is this view of separation of powers — one focused on regulating the judiciary — that is central to Raines.
It is actually Justice Souter’s concurrence in the judgment in Raines, which Justice Ginsburg joined, that relied on separation of powers as characterized by Justice Alito in Bethune-Hill II.82 Justice Souter observed that “[a]lthough the contest here is not formally between the political branches . . . , it is in substance an interbranch controversy about calibrating legislative and executive powers.”83
The Raines Court explicitly declined to rest on a distinction between state and federal standing,84 despite noting that “our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”85 The majority did not distinguish Raines and Coleman — the case involving state legislators bringing a case against legislative action they had opposed — on the grounds that state and federal legislative standing are fundamentally different. Instead, it distinguished the cases based on the positions of the legislative plaintiffs,86 noting that “[t]he one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury is Coleman v. Miller.”87 That case “stands (at most) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”88
A third weakness of Justice Alito’s critique of the Bethune-Hill II majority is that judicial separation-of-powers concerns can be influential in state legislative standing cases. Limiting the power of federal courts is a concern in cases involving state legislatures as well as in those involving Congress. Such a concern is not dependent on the identity of the parties themselves but on the nature of the controversy, and whether it is an appropriate one to be settled by a federal court.89 Separation-of-powers concerns can also limit the politicization of the courts, a phenomenon that certainly occurs in cases involving state legislatures. Allowing legislators — whether state or federal — to easily bring suits lets them avoid compromise with the executive and other government actors and lessens the need to resolve disputes through the political process.90 And, although Justice Alito’s separation-of-powers concerns might point to a higher bar for congressional standing than for state legislative standing,91 federalism concerns can go in the other direction. Federal courts might well be more cautious when deciding whether to settle a dispute between branches of state government than when considering a similar dispute between the federal branches.92 In either the state or federal context, courts “must [in the words of Justice Alito] consider whether [an attempt to assert legislative standing] is consistent with the structure created by the Federal Constitution.”93
Questions have quickly arisen as to how broadly Bethune-Hill II’s holding should be applied and whether it can be extended to congressional standing.94 In the ongoing Affordable Care Act litigation, the Fifth Circuit specifically asked for briefs on the applicability of Bethune-Hill II,95 with the House arguing that the federal government has statutorily authorized the House and the Senate, “separately or jointly,” to intervene when the Department of Justice refuses to defend a law.96 Under Justice Alito’s analysis, one might assume any restriction of state legislative standing should apply with equal or stronger force at the federal level, as concern for the separation of powers should only increase in a congressional standing case. However, as described above, the distinctions between state and federal legislative standing are not so simple. Bethune-Hill II has clarified how courts should treat single bodies of bicameral legislatures at the state level, but questions remain as to how broadly that rule should be applied.