In the last Term at the United States Supreme Court, standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v. Nebraska1 and Department of Education v. Brown,2 as well as the challenge to the Administration’s immigration priorities in United States v. Texas3 and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brackeen.4 Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Elenis.5 And standing may have been the reason for the Court’s stay of a lower court decision about the legality of the abortion drug mifepristone.6
The centrality of standing doctrine in contemporary U.S. law has many sources. One is procedural fusion, with the consequent loss of law and equity’s distinctive formal structures.7 Another is a gradual shift over the twentieth century: from having public law questions answered defensively, when the law was being enforced against someone; to having such questions answered offensively, via suits for injunctions and declaratory judgments. Yet another is the shift beginning in the 1970s toward expansive preenforcement review of agency rules. Still other reasons standing has become more central are doctrinal developments of the 1970s, not all of which have survived on their own: easy implication of statutory causes of action, the shift to enforcing public law rights primarily through injunctions rather than damages, and the growth of structural injunctions. All of these developments from the twentieth century put greater pressure on standing doctrine, as courts increasingly came to use it as a filter for the cases to be decided.
But one more source is especially important for the centrality of standing in the twenty-first century: the role of states as litigants against the federal government.8 There is an institutional side to the story, including a dramatic infusion of resources and expertise into the offices of state solicitors general. And there is a doctrinal side, especially the Supreme Court’s decision in Massachusetts v. EPA.9 In that case, a narrow majority of the Court read state standing broadly, saying states were to be given “special solicitude in our standing analysis.”10 The consequences have been predictable. In just the last decade and a half, states have come to dominate the public law scene. States — often large coalitions of states, all represented by attorneys general from the opposite political party of the President — now file suits challenging any important action taken by the executive branch.
The last decade and a half is not normal. Measured by the yardstick of the first two centuries of constitutional cases, it is not typical for so many of our major public law cases to have names like United States v. Texas and Biden v. Nebraska. The landmark decisions of our history, cases like Dred Scott v. Sandford and Youngstown Sheet & Tube Co. v. Sawyer, have not typically had state plaintiffs. If those cases had been decided in the twenty-first century, they might have been called Massachusetts v. Buchanan and Ohio v. Truman.
Although the new state standing has transformed the federal courts and reshaped their relationship to the executive branch, these transformations might prove temporary. This past Term at the Supreme Court saw what seems to be a deliberate turn by the Justices away from expansive conceptions of state standing. But it remains unclear whether the Court grasps the larger purpose of having a doctrine of standing, and whether it internalizes that purpose or treats standing doctrine as a box to be checked.
I. Basic Principles
Over the past fifty years, courts have developed an elaborate doctrine of “standing” to sue. This doctrine sometimes seems rootless, and it is often criticized as highly malleable.11 In elaborating standing, courts have run through various tests and terms, and even the term “standing” itself emerged only in the middle of the twentieth century.12 But the modern doctrine of standing is only the surface. Beneath it, and other current doctrines of procedure, jurisdiction, and remedies, lie older, more foundational principles.
Article III of the Constitution vests the federal judiciary with “judicial Power” to decide an enumerated range of “Cases” and “Controversies.”13 Since the Founding, members of the Supreme Court have insisted that this means that they must act through certain forms — they cannot issue advisory opinions in response to executive inquiry,14 and they cannot opine on disputes when they do not have the power to issue binding relief.15 Federal courts cannot decide cases without litigants, or without remedies to award.16
In other words, Article III requires the proper parties, seeking proper relief.17 This logic has driven various permutations of justiciability doctrines. It explains why courts would classically reject cases without the real party in interest, or parties of necessary importance.18 It explains why courts would not decide what they called “political questions” — meaning cases where the relief was effectively within the jurisdiction of the political branches and not the courts.19 It explains why courts would not issue judgments against nonconsenting sovereigns — they were not proper parties against whom proper relief could be issued.20
This logic of proper parties and proper relief continues to animate standing doctrine, which is now attributed almost exclusively to Article III. Today, blackletter standing doctrine requires plaintiffs to show an “injury in fact.”21 This doctrinal requirement serves many purposes. One is to ensure that the court has the correct plaintiffs before it. Requiring the plaintiff to show injury will frequently operate as a rough proxy that ensures that the plaintiff has a legitimate reason to be in court, distinct from someone requesting an advisory opinion.
The injury-in-fact requirement has become more demanding over time — indeed, some would say to the point of absurdity.22 Even if a party has been given a private cause of action by Congress, the Court still demands separate proof of “injury in fact,” meaning that sometimes plaintiffs who face a square violation of their statutory rights will still lack standing.23 But even here, the requirement of proper parties and proper relief helps explain the Court’s demand. As scholars of standing have explained, some injuries and claims are ones that properly belong to the public.24 Part of the explicit rationale of these cases, as well as their implicit justification, is the concern that Congress might be trying to give to private plaintiffs enforcement powers that are the public’s, and thus powers that should be exercised by the executive branch.25
Additionally, standing doctrine strongly disfavors so-called “third party standing.”26 These are cases in which even though the plaintiff does have an injury in fact and it can be redressed by her suit, she is denied standing nonetheless, because she is vindicating rights that more properly belong to somebody else.27 The plaintiff can vindicate the rights of others only if she demonstrates a “‘close’ relationship” to that somebody else, and demonstrates something that is keeping that somebody else from asserting those rights directly.28 This doctrine even more directly evidences the need for proper parties. It says that the blackletter standing test is necessary but not sufficient if there is a more proper party who could bring the case instead.
Professor Richard Re has observed a general pattern underpinning many modern standing decisions that he calls the “most interested plaintiff rule.”29 Standing often is “made available on a relative basis,” taking into account “where the particular plaintiff before the court stands as compared” to other potential plaintiffs,30 with standing often being awarded to “plaintiffs with the greatest stake in obtaining the requested remedy.”31 To take one recent example, in Clapper v. Amnesty International USA,32 the Court denied standing and concluded its analysis by pointing to other plaintiffs who would have “a stronger evidentiary basis for establishing standing than do respondents in the present case.”33 To the extent that this is indeed a general pattern in the Court’s decisions, once again it points to the continuing influence of the fundamental principle of proper parties.
Remedies are also critical to the proper exercise of the judicial power. Indeed, blackletter standing doctrine requires the plaintiff’s injury in fact to be connected to remedies. The injury must be traceable to the defendant, and it must be redressable by the relief that the plaintiff seeks.34 Hence, “standing is not dispensed in gross,”35 and “‘a plaintiff must demonstrate standing’ . . . ‘for each form of relief’ that is sought.”36 If a plaintiff seeks an injunction, for instance, “case-or-controversy considerations ‘obviously shade into those determining whether the complaint states a sound basis for equitable relief.’”37 Indeed, it would be no exaggeration to say that one of the most important reasons that plaintiffs must demonstrate their injury in the first place is so that they can demonstrate that they are seeking the proper relief to redress it.
Attention to remedies and redressability helps explain some of the classic early twentieth-century standing cases. Consider the 1923 case of Frothingham v. Mellon,38 where the Court rejected a challenge to the Maternity Act39 on the grounds that an individual plaintiff had no standing to sue. The case is often shorthanded as memorializing a rule against “taxpayer standing,” but that is something of a misnomer.40 Taxpayers do and have always had standing to challenge the taxes they pay.41 (Think of the property owner who challenged the tax in Hylton v. United States,42 or the manufacturer who challenged the tax in Bailey v. Drexel Furniture Co.43) Harriet Frothingham’s problem was that she had no legal objection to the taxes she paid, only to the way the government subsequently spent the money. And this is a problem, to use modern doctrinal terms, of redressability. If the taxes were lawfully collected from Mrs. Frothingham, once they entered the federal treasury she lost any legal claim to them. And if she were somehow to obtain an injunction against the government’s spending under the Maternity Act, that remedy would not benefit her as a taxpayer. The government would not need to refund the money; it could simply spend it on something else.
Or consider the next decade’s case of Ex parte Levitt,44 where the Court refused to entertain a lawyer’s potentially explosive challenge to the legality of Hugo Black’s appointment to the Supreme Court. The Court’s extremely brief opinion described Levitt as an improper party, which is not obviously correct.45 The even more fundamental problem sounded in remedies and jurisdiction. Levitt filed a “Petition for an Order to Show Cause” without identifying an established cause of action or a basis for equitable relief, and filed it in the Supreme Court as an original matter, even though the Supreme Court could not possibly have original jurisdiction in such a case.46 To shorthand cases like these as “standing cases” and to reduce them to the problem of injury in fact is to miss something very important about the inquiry.
The importance of remedies to standing, and attention to proper relief, is especially evident in equity. The range, power, and flexibility of equitable remedies are a central part of equity’s contributions to modern law. As Professor D.E.C. Yale put it, with some modest overstatement, “Equity is essentially a system of remedies.”47 Unsurprisingly, equity has tended to require a stronger showing of injury (or of a “grievance,” to use language more apt for equity) before it will deal out a stronger remedy.48 Thus, “in equity it all connects — the broader and deeper the remedy the plaintiff wants, the stronger the plaintiff’s story needs to be.”49
Some reasons for this practice are straightforwardly functional. For example, equitable remedies are often more intrusive to the parties,50 encroaching on liberty interests of private defendants and raising democratic concerns for public defendants. And equitable remedies are often more burdensome to the courts, because they can require supervision and updating over time.51 Another functional reason is an analogy to damages: there is an inherent symmetry between the amount of a plaintiff’s injury and the amount of damages the defendant is required to pay.52 But no such symmetry is inherent in equitable remedies like injunctions, specific performance, and constructive trust.53 Equity had to be conscious about whether the plaintiff’s grievance was commensurate with the remedy sought, because otherwise a trifle of grievance could be the basis for a remedy that imposed massive costs on the defendant. The connection of the intensity of the plaintiff’s grievance to the intensity of the remedy is grounded in equity’s role as a secondary system.54
And while the modern Supreme Court does not always make this explicit,55 its cases show a pattern of requiring a stronger grievance for a stronger equitable remedy. The cases in which the Court emphasizes the standing-remedy connection are almost always cases about equitable remedies, such as City of Los Angeles v. Lyons,56 Lewis v. Casey,57 and Gill v. Whitford.58 This is true of cases about redressability — which is the place in the Lujan59 framework that most obviously integrates standing and remedy. And it is not just redressability but standing generally. In Professor Ernie Young’s words, “the familiar landmarks of standing doctrine — Data Processing, Warth v. Seldin, Allen v. Wright, Lujan v. Defenders of Wildlife — all involved equitable relief.”60 The stronger remedial medicine of equitable remedies is precisely where almost all the development of standing doctrine has been.61 This pattern points to the continuing influence of the fundamental principle of proper relief.
C. The Judicial Role
These doctrines and principles all serve an important separation of powers purpose, which the Court intones so frequently as to mark a cliché. The doctrines of justiciability define “the judiciary’s proper role in our system of government.”62 “The ‘law of Art. III standing is built on a single basic idea — the idea of separation of powers.’”63 Thus, “[r]elaxation of standing requirements is directly related to the expansion of judicial power.”64 And so on.65 But why? What do these mantras mean? Is the Court making the tautological point that because standing is a judicial construction of the requirements of Article III, and because the separation of powers comprises Articles I, II, and III of the Constitution, any violation of the doctrine of standing must also be a violation of the separation of powers? If so, the invocation of separation of powers adds nothing but an air of seriousness.
Yet there is a deeper connection between standing, remedies, and the judicial role. The judicial role is the conclusive resolution by judges of legal disputes, which in turn are the sorts of disputes that can be conclusively resolved by judges acting as judges. Put less circularly, what judges do is enter judgments (“conclusive resolution”) of disputes that involve the rights of parties (“the sorts of disputes that can be conclusively resolved by judges”) according to law (“acting as judges”). Doctrines like standing operate to ensure that the federal courts act as courts. Requiring proper parties ensures that it is a judicially cognizable dispute, and requiring proper relief ensures that it is a judicially resolvable dispute. These requirements help to distinguish the court’s power to decide particular cases according to law from the legislature’s power to make law and the executive’s power to enforce it.
These doctrines of justiciability also serve practical purposes — but not only (or not particularly) the one that is too-often cited, of ensuring that the issue will be well litigated.66 In important public law cases, the issue is almost always amply litigated by ideologically motivated parties and armies of amici.
Instead, the doctrines help protect the right of people to stay out of court. That is, they protect the right to be safe from the lawyers. The Supreme Court has called this “a due regard for the autonomy of those persons likely to be most directly affected by a judicial order.”67 More concretely, it means that when the proper parties do not want the courts to intervene in their business, they can continue to manage their own affairs without judicial oversight.68 For a stark example, consider the fate of Gary Gilmore, who was executed by the state of Utah in 1977.69 Because Gilmore’s execution was the first one after the Supreme Court declared a moratorium on the death penalty in 1972,70 there were fair questions about the legality of his sentence. But Gilmore made a “knowing and intelligent” choice not to challenge it, accepting his fate.71 For the Supreme Court, that was reason enough not to intervene and decide any further legal questions, even a constitutional question on a matter of life and death.72 Gary Gilmore’s mother, Bessie, sought unsuccessfully to intervene, but the Justices in the majority concluded that she lacked “standing,”73 that the Court was “without jurisdiction to entertain the ‘next friend’ application filed by Bessie Gilmore,”74 and that “[w]ithout a proper litigant before it, this Court is without power to stay the execution.”75
The justiciability doctrines also protect the courts from their own snap judgments. A consequence of the classical model of the judicial role is to ensure that the legal issues on the docket of the Supreme Court do not too neatly track the list of political issues at the front of the minds of the public.76 Another consequence is to ensure that those issues come before the Court at a deliberate pace. In combination, these consequences provide another level of remove between the kinds of things the courts do and the kinds of things that would have been done by a council of revision.
It is worth noting, and is more than incidental, that these practical purposes presuppose that the courts are not infallible. If courts always got things right, always made things better rather than worse, there would be no reason other than resource constraints not to have them decide as many things as possible. And if their time must be rationed, there would be no reason not to give them the cases of the vastest scale and greatest importance first. The doctrines of justiciability that bind the judicial role recognize that this is not so. To ensure order, we sometimes treat judicial decisions as if they are infallible, but we must not confuse that practice with actual perfection.77
There are important and valid questions about whether all of these principles have been cashed out in exactly the right places. One can certainly quibble with the details of existing doctrine. And one can argue more fundamentally that some of these inquiries should not be in a doctrine called or conceptualized as Article III standing, but instead should be handled by rules about causes of action, equitable jurisdiction, various civil procedure doctrines, and so on.78 In fact, as is often the case, our legal system would be healthier if the answers to many important questions were traced not to the Constitution but to background principles embedded in our legal system,79 where a few words do not have to be strained to do so much.
But whatever doctrinal boxes one may choose for the proper-party and proper-relief inquiries, these questions are critical to safeguarding the judicial role. One way or another, federal courts should be deciding only cases between the proper parties that result in proper relief.
II. The Massachusetts v. EPA Era and the Shifting Judicial Role
The viability of this model of the judicial role has been challenged for decades. In 1976, Professor Abram Chayes wrote about the then-new “public law model” of litigation in which courts served more as law-declaring regulators than as resolvers of specific disputes.80 On this model, a lawsuit:
focuses not on the fair implications of private interactions, but on the application of regulatory policy to the situation at hand. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future interaction of the parties and of absentees as well, subjecting them to continuing judicial oversight.81
But the seemingly ascendant Public Law Model has not been unhesitatingly accepted by the federal courts; some hawkishness on standing and remedies over the past fifty years, among many other things, has marked judicial hesitation.
A new variation of the Public Law Model, and a new threat to the traditional model of the judicial role, seemed to emerge after the Supreme Court’s 2007 decision in Massachusetts v. EPA. In this decision, the Court found that Massachusetts had standing to sue the Environmental Protection Agency for failure to regulate greenhouse gas emissions under the Clean Air Act. Although the injury that the state claimed was a loss of its coastline because of rising sea levels,82 this injury was difficult to trace directly to the EPA’s actions, and also difficult to redress by a prohibitory or even a mandatory injunction addressed to the EPA. It was exactly the kind of diffuse injury that would ordinarily not suffice to establish standing. But the Court held in a 5–4 decision that the state had standing because states should receive “special solicitude” in the standing analysis.83
In the years following that decision — what we will call the “Massachusetts v. EPA era” — the number of lawsuits brought by state attorneys general challenging actions by the federal government skyrocketed. Now, when a Republican administration does something consequential and controversial, it will almost certainly be sued by a group of Democratic states, and when a Democratic administration does something consequential and controversial, the roles reverse.84 Republican state attorneys general initiated 58 lawsuits against the Obama Administration; Democratic state attorneys general initiated 155 lawsuits against the Trump Administration; and Republican state attorneys general have already initiated 59 lawsuits against the Biden Administration.85 As we will discuss in Part III, this dynamic was on continuing display in the October 2022 Term, which featured major challenges to the Biden Administration’s immigration policies and student loan forgiveness. (During the same time, lower courts issued nationwide relief in at least four more suits by states against the Biden Administration, in cases challenging immigration policies,86 vaccination requirements,87 and influence on social media platforms.88)
The decision in Massachusetts v. EPA contributed to this dynamic, but it is not the only thing that did, and perhaps not even the most important thing that did. Other causes discussed include the rising sophistication and resources of state solicitors general, ideological polarization in Congress, changes in the preliminary injunction, the rise of the national injunction, and a trend toward major executive actions being taken with only an attenuated claim of legislative authorization. Whatever the precise accumulation of causes, however, Massachusetts v. EPA is a key part of the story because it allowed suits by states that would never have been considered cognizable under previous standing law.
A. Massachusetts v. EPA
What is clear about Massachusetts v. EPA is that it reflected a lax judicial attitude toward state standing. What is less clear is the exact basis for Massachusetts’s standing to sue. The specific nature of the state’s injury — and more importantly the connection between that injury and the remedy the state sought against the EPA — were more speculative than in a typical administrative law suit. Not because climate change is speculative, to be clear, but because the nature of the problem is so global and systemic that it is hard to connect a future hypothetical EPA rulemaking to exact fluctuations in the coastline of the state of Massachusetts.
It is true that Congress had provided a statutory cause of action to challenge agency decisions like the one at issue.89 The Court described that statutory cause of action as being “of critical importance to the standing inquiry.”90 But under precedent at the time, and emphatically confirmed since, a statutory cause of action is not completely sufficient to answer the question of standing.91
To round out the argument for standing, the Court emphasized that states were entitled to special access to the federal courts. “States are not normal litigants for the purposes of invoking federal jurisdiction,” the Court wrote.92 States had “surrender[ed] certain sovereign prerogatives” by forming the United States, and could no longer vindicate their interests through war, treaties, or even some exercises of the police power.93 Thus, concluded the Court: “Given that procedural right [in 42 U.S.C. § 7607(b)(1), discussed above,] and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”94
The nature of this “special solicitude” was famously undefined.95 As Chief Justice Roberts’s dissent in Massachusetts v. EPA put it: “It is not at all clear how the Court’s ‘special solicitude’ for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms.”96 Both the majority opinion and later cases suggested that Massachusetts v. EPA could undermine some important aspects of standing doctrine.
First, it could undermine the rule against parens patriae lawsuits that dates back to another standing case involving the Bay State, Massachusetts v. Mellon — the companion case to Frothingham. In Massachusetts v. Mellon, the Court refused to hear another lawsuit that challenged the federal spending in the Maternity Act as beyond federal power, but this one was brought by the state of Massachusetts. Among other things Mellon squarely rejected the argument that “the suit may be maintained by the State as the representative of its citizens.”97 While a state had many powers to regulate and entertain lawsuits in its own courts on its own citizens’ behalf, “[i]t cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof.”98 A state, one might say, is not the proper party to vindicate the rights of its citizens against the federal government.
In a long footnote, Massachusetts v. EPA pushed against Mellon. The Court warned against a “broad reading” of Mellon, and insisted that “there is a critical difference between allowing a State ‘to protect her citizens from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do).”99 Even if this distinction did not formally allow states to reassume the role of parens patriae against the federal government, in practice it seemed to invite the creative reconceptualization of such suits.100
Second, special solicitude could license a kind of broad economic speculation about the impact of federal policies on states, which might give states power to challenge every major administrative action. For instance, in Texas’s challenge to the Obama Administration’s Deferred Action for Parents of Americans (DAPA) program, the state relied in part on speculation about the financial impact of immigrant populations in Texas.101 The October 2022 Term cases featured such arguments as well, from the states challenging both the Biden Administration’s immigration policies and its student loan forgiveness.
Taken too far, these arguments could obliterate any demand for proper parties. States encompass enough people, places, and things that any significant administrative policy can be said to affect a state in some way.102 Call this the state-as-a-super-big-person problem103 — and think in your mind of the massive human-shaped sovereign on the frontispiece of Thomas Hobbes’s Leviathan. If anything, given the sheer massiveness of state “persons,” the “injury in fact” test would need to be applied to them with special skepticism, not “special solicitude,” in order to establish whether they are the proper parties.104
B. Inattention to Remedies
The pressure to shift the judicial role has come not just from a lax approach to standing, but also from inattention to proper relief. Three instances of this inattention are (1) the rapid rise of the national injunction, (2) the shifting and merits-centric understanding of the preliminary injunction, and (3) the one-good-plaintiff rule.
The first instance is the dramatic growth of the national injunction.105 Ordinarily, an injunction regulates the conduct of the defendant vis-à-vis the plaintiff. The primary exception, if it is right to think of it that way, is the class action, but even then the defendant’s conduct is regulated vis-à-vis those who are effectively plaintiffs, virtually represented by the “named” plaintiff.106 In many cases the Supreme Court has expressed this party-specific understanding of what equitable remedies do,107 and it reflects centuries of equity practice.108 By contrast, a national injunction “controls the federal defendant’s conduct against everyone”109 — including people who are not parties to the case, and who are not represented by parties in the case.
The exact birthday of the national injunction is disputed,110 but what is not in dispute is that it was peripheral and inconsequential until the Massachusetts v. EPA era. Only in 2014 did the national injunction become central to our nation’s political life, and especially to judicial interventions in that life. The litany of vices is familiar, and they can be listed here without elaboration: heightened incentives for forum shopping, asymmetrical effects for a win by the plaintiff and a win by the defendant, circumvention of class action rules and United States v. Mendoza,111 a risk of conflicting injunctions, a lack of percolation for major constitutional questions, and rushed decisionmaking by the Supreme Court. All of these consequences drive ever higher the partisan polarization that has American public life in its grip.
Standing and remedies are not completely separate, of course.112 In fact, in Massachusetts v. EPA itself, the Court’s laxity about standing was in part a laxity about redressability, that is, about the question of remedies! So too, the growth of state standing and national injunctions may create a multiplier effect.113 It may be easier for judges to justify granting extremely broad relief when they are faced not with an individual plaintiff with an individual injury, but with what is effectively a collective, conceptual plaintiff that is really asserting a public injury. Indeed, some cases might feature a coalition of such collective, conceptual plaintiffs that purport to represent nearly half of the country. Having allowed lawsuits on the basis of broad, nonindividualized “injuries,” it seems only natural to grant broad, nonindividualized relief to “redress” them.
A second instance of judicial inattention to remedies issues is shown in the decadence of the preliminary injunction. It is standard remedial doctrine that preliminary injunctions are supposed to be rare.114 They are not meant to decide the case, but are instead meant to hold things in place — “preserve the status quo” — so a court is able to decide the dispute.115 As such, they are a critical tool in equity’s arsenal. They are especially useful in allowing a court to stop a defendant from abusing the legal process by going ahead and taking the irreversible action that will moot or radically alter the case — selling the disputed pet, tearing down the disputed house, exporting the disputed Vermeer.
But that is no longer the primary function that preliminary injunctions serve. The emergent goal is to prevent any harm to a plaintiff, with a presumption that any violation of a right is inherently irreparable116 — which in public law cases has the effect of making preliminary injunctions almost automatic. What is purportedly a four-factor test for a preliminary injunction is, as the courts increasingly recognize, becoming a one-factor test that depends entirely on what the court thinks of the merits.117 What a district court thinks is also closer to a snap judgment than would be advisable — there is briefing, but there is no trial,118 and there is usually little or no experience over time with the challenged statute, rule, or policy.
This shift in preliminary injunction practice interacts with national injunctions and lax state standing. It most obviously overlaps with the rise of the national injunction, since most national injunctions are preliminary. The national injunction degrades judicial decisionmaking, and the shifts in preliminary injunction practice are pushing the courts further toward hasty, relatively fact-free resolution of major questions of public law. The changes in the preliminary injunction also interact with lax state standing. Put together, there is a shift from any real weighing of the equities of the particular injunction to a focus on just the merits — which means our biggest public law cases are presented as pure questions of law, presented by collective, conceptual plaintiffs, with no trial or real-life testing. And then courts are not even deciding these questions, but are simply predicting who would be “likely” to win. Making everything turn on judicial intuition about the merits is especially ill advised in a time of extreme political polarization with the easy forum shopping that comes to a coalition of plaintiff states.
A third instance of remedial inattention related to standing doctrine has been the Court’s endorsement of the so-called one-good-plaintiff rule in looking for standing.119 When faced with a slew of different appellant parties, many of whom may not be proper parties to the case, the Court likes to say that it needs to find only “one good plaintiff” before it can move on to the merits and ignore the standing of all the other plaintiffs. Viewed as a matter of standing doctrine alone, one can see some logic in this.120 True, if one party has standing, the Court will need to resolve that party’s rights. But figuring out whether all, most, or merely one of the parties has standing will be exceptionally important for determining what relief a court should ultimately issue.121
Of course the Supreme Court’s inattention to these remedial issues may be partly explained, even if not justified, by the dynamic created by modern notions of judicial supremacy, reflected in opinions like Cooper v. Aaron.122 In Cooper the Court famously, or notoriously, equated its own judicial opinions with the Constitution itself, suggesting that the Supremacy Clause and the oath requirements of Article VI required all other government officials to swear fealty to Supreme Court opinions.123 If this is taken seriously it can eclipse more nuanced analysis of remedies at the Supreme Court. Why should the Supreme Court worry about the details of the scope of relief if as a practical matter a Supreme Court opinion operates as if it were a national injunction? And if all the plaintiffs truly want is a Supreme Court opinion — whatever the actual remedy — then all they care about is one plaintiff who is good enough to get it.
But this inattention has had consequences, especially when it comes to the lower courts. Even if the Supreme Court believes that the Constitution requires all other officials to equate Supreme Court opinions with the Constitution itself, could it really believe that the same is true of opinions in the District of Hawaii and the Northern District of Texas?
C. Institutional Realities
These doctrinal developments are intertwined with institutional developments. One is the growth and polarization of litigating arms within each state (usually the state solicitor general’s office).124 As other scholars have recognized, states as litigants against the federal government are flying in the slipstream of Abram Chayes’s Public Law Model.125 Another is the lower court judges’ increasingly sympathetic attitude toward state plaintiffs. This attitude could stem from heightened polarization of lower court judicial appointments.126 Such polarization would in turn be exacerbated by forum shopping, allowing each cadre of plaintiffs to bring their case in front of a more sympathetic judge.127
This change in attitude could also come from considerations of fairness and symmetry. Even a judge who was hawkish on standing, inclined to think that the Court had erred in letting Massachusetts lever the judicial power against the EPA, might think that having wrongly granted standing to State A, it was only fair to grant it to State B as well.128 This is especially true as the partisan control of the executive branch switches, and thus so does the partisan valence of the states inclined to sue it. If blue states get special solicitude, then red states should too.129 Similarly, a judge skeptical of national injunctions might think that if a Democratic administration was required to endure them, then a Republican administration should too.130
Whatever the exact mix of doctrinal details and institutional dynamics that got us to this point, the cumulative effect of the Massachusetts v. EPA era has been stunning. The legal system has been approaching a point of exhaustion and futility, like a high school theater play on the last night of the performance, when everyone knows the lines but is so tired of saying them. As soon as a presidential administration does something that matters, it will be sued immediately by a coalition of states whose attorneys general are of the opposite political party; the plaintiff States will wrap themselves up in “special solicitude” and point to downstream costs they may suffer from the federal policy, which is easy to do because every important federal policy will lead to costs somewhere; and the States will seek a preliminary injunction shutting down the federal policy everywhere. And then, because they sue in a friendly district court and circuit court, and because the preliminary injunction analysis is in essence little more than a judicial prediction of the merits, they will almost certainly get the injunction they seek.131 And so we have arrived, for the first time in our national history, at a state of affairs where almost every major presidential act is immediately frozen by a federal district court.
This new but now familiar routine puts enormous pressure on our democratic system and on the Supreme Court. Instead of a presumption of legitimacy for action by the political branches,132 almost every important action they take will be judicially blocked. The Supreme Court is forced to act more quickly, without the percolation advantage of having several circuit courts consider the question.133 And the political branches may even be tempted to authorize major policies as a sheer political gambit, knowing that the courts will quickly enjoin their enforcement, allowing proponents of a policy to score political points against the judiciary without having to accept any of the policy’s costs or consequences. This is bad law and bad democracy. It cannot go on forever.
III. End of an Era? Two Cheers for the Supreme Court’s Course Correction
Perhaps the most recent Term proves the truth of Stein’s Law: “If something cannot go on forever, it will stop.” Although the rise of the Massachusetts v. EPA era seemed inexorable, the October 2022 Term may have marked a turning point. There are two pieces of good news. First, the Court seems to recognize the need for a course correction. Second, the cases from this Term signal at least some understanding that this course correction — for both state and individual plaintiffs — will require attention to remedies. But at the same time, the Court is sometimes too lost among the trees of standing doctrine to see the way out of the woods.
A. Narrowing Massachusetts v. EPA
Taken together, the Court’s standing decisions from this Term signal a substantial narrowing of state standing. The starting point is the arguments of the States. In both Biden v. Nebraska and United States v. Texas, the plaintiff States relied for standing on the kinds of broad interests that were given special solicitude in Massachusetts v. EPA.134 In the States’ main brief in United States v. Texas, for example, the table of authorities includes Massachusetts v. EPA, and the pages cited are “passim.”135
The States’ arguments were not entirely rejected by the Court. In one case brought by states the Court found standing (Biden v. Nebraska), and in the other it did not (United States v. Texas). And yet in neither case did the Court cite Massachusetts v. EPA favorably. In fact, in neither case did any of the nine Justices cite Massachusetts v. EPA favorably.136 Instead, the opinion that was cited with approval — in opinions joined by six of the Justices — was the Chief Justice’s dissent in Massachusetts v. EPA.137
The absent presence of Massachusetts v. EPA is even more remarkable because its category of “special solicitude” for states would have arguably changed the outcome in one case and provided strong support for the Court’s standing holding in another. Yet in neither case did the Court suggest there was any special advantage for states in the standing analysis.
Consider first United States v. Texas. In the opinion of the Court, Justice Kavanaugh on the first page completely identified the standing of states with the standing of private citizens. He quoted a case in which the Court held “that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”138 Then he immediately applied that holding to the States: “Consistent with that fundamental Article III principle, we conclude that the States lack Article III standing to bring this suit.”139 As a matter of logic, that conclusion — no standing for an individual citizen, ergo no standing for a state — follows only if there is no special solicitude for states.
Nor did the Court leave matters there. In two footnotes, the Court directly addressed the fact that the plaintiffs were States. In footnote 3, the Court began: “Also, the plaintiffs here are States.” But this did not become the basis for special solicitude, and if anything the Court drew from the identity of the plaintiffs as States the need for special skepticism of standing.140 Then, in footnote 6, the Court was even more directly dismissive of Massachusetts v. EPA. First, the Court distanced itself from the citation, by attributing the citation to the plaintiff States.141 Second, the Court expressly noted “disagreements that some may have with Massachusetts v. EPA” (presumably including at least one member of the majority).142 Third, and most important for the future, the Court held Massachusetts v. EPA inapplicable because “[t]he issue there involved a challenge to the denial of a statutorily authorized petition for rulemaking,”143 a sharp limitation to the scope of the precedent.
The other Justices expressed even more explicit skepticism of Massachusetts v. EPA. Justice Gorsuch (joined by Justices Thomas and Barrett) found it “hard not to wonder why the Court says nothing about ‘special solicitude’ in this case. And it’s hard not to think, too, that lower courts should just leave that idea on the shelf in future ones.”144 Justice Alito’s dissent expressed similar surprise, culminating in the question: “[M]ost importantly, has this monumental decision been quietly interred?”145
The next week this forecast of quiet abandonment seemed to come true. On June 30, 2023, the Court decided the student loan cases, Biden v. Nebraska and Department of Education v. Brown. In the former case, the Court concluded that the state of Missouri did have standing to challenge the Administration’s student loan forgiveness plan,146 though two individuals in the latter case did not.147 Yet despite the Court’s conclusion that the one good plaintiff was a State, there was no mention of Massachusetts v. EPA from any quarter. This curious incident of the Court’s silence about Massachusetts v. EPA is telling, especially because the case would have reinforced the borderline state-standing claim that the Court accepted in Biden v. Nebraska. It appears that the Chief Justice’s dissent in Massachusetts v. EPA is now considered more authoritative than the majority opinion.
B. Renewed Attention to Remedies
Moreover, and especially promising, the decisions from last Term also seemed to recognize that taming the latest onslaught of public litigation will require some attention to redressability and remedies. This recognition is especially apparent in some of the separate opinions in United States v. Texas, and the majority opinion in two other cases: Department of Education v. Brown, the student loan case brought by individual plaintiffs; and Haaland v. Brackeen, where the Court rejected both individual and state challenges to the constitutionality of the Indian Child Welfare Act.
Brackeen presented potentially seismic challenges to the constitutional status of federal Indian law, but the Court rejected all of them — some on the merits, some for lack of standing. On the merits, the Court concluded that the statute (and implicitly much of the rest of federal Indian law) was within Congress’s Article I powers and did not violate principles of federalism.148 There was an additional challenge on equal protection grounds — which one Justice described as “serious”149 — that also had the potential to upend much of federal Indian law. It was dismissed for lack of standing.150
In dismissing the equal protection challenge for lack of standing, the Court specifically emphasized the problem of remedies and redressability. The Court was willing to accept that the kind of race discrimination alleged by the challengers counted as an injury.151 But the important point was that their suit was not a suit for redress of that injury. The defendant was the Secretary of the Interior, but she was not the one enforcing the statute: “[E]njoining the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements.”152 Thus the proper parties would be the parties in a state-court adoption proceeding, and the proper relief would be a judgment deciding the adoption petition notwithstanding any unconstitutional statute to the contrary.153
Brackeen’s discussion of redressability built on the recent precedent of California v. Texas,154 in which the Court had dismissed a constitutional challenge to the Affordable Care Act because of similar flaws. The challenged parts of the statute were not enforced by federal officials, and potentially not even enforceable.155 This created problems both of traceability and redressability. In an opinion by Justice Breyer, the Court explained the redressability problem in this way: “Remedies . . . ordinarily ‘operate with respect to specific parties’ . . . [;] they do not simply operate ‘on legal rules in the abstract.’”156 And the Court explained that the plaintiffs could not possibly have sought any particular remedy, such as damages or an injunction, against any of the defendants — the executive branch had no power to enforce the law, and Congress was not a proper party to the suit either.157 In both Brackeen and California v. Texas, restoring the centrality of remedies specific to the parties was a healthy development that can mitigate the new spread of public litigation.
Brackeen’s discussion went further still, emphasizing the distinction between judgments and opinions in a way that might eventually clear up the Cooper v. Aaron confusion.158 The challengers in Brackeen suggested that redressability came from the fact that if the Court were to agree with them, then lower courts would surely follow the Supreme Court’s opinion as precedent. In response, writing for the Court, Justice Barrett said that “[r]edressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.”159 And she concluded: “It is a federal court’s judgment, not its opinion, that remedies an injury; thus it is the judgment, not the opinion, that demonstrates redressability. The individual petitioners can hope for nothing more than an opinion, so they cannot satisfy Article III.”160
As a matter of text, history, structure, and legal technicalities, this distinction between judgments and opinions is correct, as well as critical to understanding the judicial power.161 But it is not the conception that has always held sway in the past sixty years, and it is still striking to see the Supreme Court saying, in effect: plaintiffs cannot litigate a case merely on the assumption that people will follow Supreme Court opinions as law. And lest one think the distinction between judgments and opinions was entirely a one-off, we also note that the Court’s extremely technical mootness discussion in Moore v. Harper,162 a prominent case from this Term about the meaning of the Elections Clause, also hinged on the formal distinction between opinions and judgments.163 Renewed attention to opinions and judgments is a very promising form of renewed attention to remedies.
Attention to remedies was also somewhat apparent in the Court’s analysis in Department of Education v. Brown, one of the two student loan cases. Two individuals, Myra Brown and Alexander Taylor, challenged the Administration’s student loan relief plan on a somewhat indirect basis. The Court described their claim for relief this way:
First, because the HEROES Act does not substantively authorize the Plan, the Department was obligated to follow the typical negotiated-rulemaking and notice-and-comment requirements. Second, if the Department had observed those procedures, respondents might have used those opportunities to convince the Department (1) that proceeding under the HEROES Act is unlawful or otherwise undesirable, and (2) that it should adopt a different loan-forgiveness plan under the HEA instead, one that is more generous to them than the HEROES Act plan that they allege is unlawful. They assert there is at least a chance that this series of events will come to pass now if we vacate the Plan.164
The Court found this argument “strange” and “unusual,”165 and unanimously concluded that it could not support standing. In the Court’s view, “the deficiencies of respondents’ claim [were] clearest with respect to traceability,” because “the Department’s decision to give other people relief under a different statutory scheme did not cause respondents not to obtain the benefits they want.”166 Yet as the Court recognized, this problem of traceability also sounded in remedies, observing that it had never “accepted that an injury is redressable when the prospect of redress turns on the Government’s wholly discretionary decision to create a new regulatory or benefits program.”167 The fundamental reason that the plaintiffs’ claim was so strange, and ultimately so unavailing, is that eliminating loan relief is not a natural remedy for those who seek expanded loan relief.
And then there is Justice Gorsuch’s concurrence in United States v. Texas. As discussed above, a majority of five Justices concluded that the states had suffered no cognizable injury from the Biden Administration’s enforcement discretion. But Justice Gorsuch’s concurrence began: “[R]espectfully, I diagnose the jurisdictional defect differently. The problem here is redressability.”168 Justice Gorsuch zeroed in on several different remedies problems specific to the immigration case, such as the scope of a jurisdictional bar in the Immigration and Nationality Act,169 the fact that eliminating the enforcement “Guidelines” would still leave the executive branch with the same discretion,170 and the plaintiff States’ inattention to the traditional nonmerits considerations in seeking equitable relief.171 We will leave the details of these redressability problems to one side. What is promising is that several Justices on the Court are stressing the importance of such details, and if all courts were to heed them, the inevitable challenges to federal immigration policy would proceed in a more orderly and lawful — a more judicial — fashion.
In addition to this, Justice Gorsuch’s concurrence also happily gave attention to another important remedial issue: the scope of relief under the Administrative Procedure Act172 (APA). In a nutshell the question is whether § 706 of the Act authorizes a remedy of “universal vacatur.” In recent decades, numerous federal courts have assumed that the Act authorizes this relief, because it instructs a reviewing court to “set aside”173 unlawful agency action.174 There have also been recent scholarly voices in support of the conventional practice. For example, Professor Ronald Levin has argued that it is best to see the Act as a framework statute, and even though it was not understood at the time of enactment to authorize universal vacatur, that potent remedy has been developed by federal courts as they fill out the details of the congressional framework.175
Nevertheless, as Justice Gorsuch noted, this remedy is looking increasingly shaky. There was no practice of “universal vacatur” before the Act;176 no one at the time of the Act or in the immediately following decades — including Professor Kenneth Culp Davis and Professor Louis Jaffe — seems to have been aware that a new super-remedy was being created;177 and most decisively of all to read “set aside” as a reference to remedies is in direct contravention of the text and structure of the Act, which places the “set aside” reference within a section on the scope of review and has a different section on remedies that directs courts to use traditional remedies such as injunctions.178 Moreover, because there is no traditional legal or equitable remedy of “vacatur” (vacatur being what a reviewing court does to a judgment), there is an acute need for real congressional authorization if the courts are going to apply a new remedy,179 especially a super-remedy that upends the traditional relationship between the federal courts and the executive branch. Finally, there is an easy explanation for how courts could come to assume there was a vacatur remedy in the Act — review of agency action was often exclusive to the D.C. Circuit, which meant that a circuit precedent that a rule was unlawful had the practical effect of vacating it.180 That is much easier to explain than how the Act, right on its face, created a novel remedial superpower that escaped everyone’s attention for decades. These points and others are being made now by an increasing number of scholars.181
It is no accident that the renewed attention to remedies is coinciding with new skepticism about vacatur. “Universal vacatur” is a remedial abstraction — it floats above the plaintiff and defendant, and with this putative remedy a court is acting directly on a rule or other agency-promulgated legal norm. But this is exactly what California v. Texas and Haaland v. Brackeen said that courts do not do. Courts redress the plaintiff’s injury by giving the plaintiff a remedy against the defendant.182 They may enjoin the enforcement of a statute or rule, but properly speaking the injunction runs against those who would enforce the statute or rule; it does not act directly on the legal norm itself.183 Of course this is not to deny that a court’s decision has implications that run beyond the parties.184 The precedents of the Supreme Court control the actions of the lower federal courts, which means that when the Court holds a statute to be unconstitutional or a rule to be unlawful, it may be as good as vacated. (Indeed, this may be even true for the D.C. Circuit when it has exclusive review.) But in certain moments of perspicuity, the Court has wisely insisted on precision about this point: the federal courts give judgments that redress the injuries of parties, and it is only in the performance of that duty — and not as an independent duty, or a distinct cause of action, or a stand-alone remedy — that federal judges will say what the law is and what it isn’t.185
This is not only a point about administrative law. It is emblematic of the broader concerns about standing and remedies — about proper parties and proper relief — that the current moment calls for. The tide of national injunctions over the last decade has put enormous pressure on the standing-remedy nexus, as minimal or even merely probabilistic injuries are made the basis for far-reaching injunctions. But that tide has been ebbing, and across the courts of appeals there have been many critical voices about the national injunction.186 In response, there has recently been a marked shift by plaintiffs and courts to rely on “universal vacatur” as the preferred means of controlling how the federal government acts toward nonparties. This is a predictable hydraulic effect, and there will be no fundamental reset of the judicial role if every national injunction gets relabeled “universal vacatur.” Attention to proper relief in a sound analysis of standing should result in great skepticism about both of these forms of universal remedy, as judges both off and on the Supreme Court are increasingly noting.
C. Continued Confusion
At the same time, the Court is too distracted by the details of standing doctrine to fully sort out the challenges it faces in these cases.
Return to United States v. Texas but in slightly closer focus. While the Court reached the correct result in stopping the lawsuit, and while it sensibly backed away from the “special solicitude” of Massachusetts v. EPA, in other ways the Court’s opinion is a mess. The Court relied centrally on an earlier nonenforcement case, Linda R.S. v. Richard D.,187 which was about redressability, but the Court deployed it for a different point — to deny that Texas had sufficient injury, or more precisely to deny that Texas’s injury was “cognizable,”188 creating doctrinal confusion. In addition to blending different parts of standing doctrine together, the majority also blended in the merits: important parts of the opinion seem to rely on a substantive conclusion that as a matter of statutory or constitutional law, the Administration had lawful enforcement discretion.189 And the opinion contains a largely unexplained list of exceptions that are hard to trace to any consistent theory.190 Several of the Court’s exceptions are merits-focused — a catalog of circumstances in which it would not be true that the executive branch was lawfully exercising enforcement discretion — which creates further confusion about the basis for the Court’s decision.191
The old doctrinal blinders are also apparent in Biden v. Nebraska. The Court found its one good plaintiff — the state of Missouri — and thus used the case to announce the unlawfulness of the Administration’s student loan relief program, concluding that the Administration had exceeded its statutory authority in multiple respects.192 While we agree with the Court’s ultimate disposition of the merits, its treatment of jurisdiction, and especially of remedies, was troubling.193
Over the dissent’s objection, the Court found standing for the state. At a doctrinal level, the Court’s standing analysis was somewhat pedestrian and defensible. The Court eschewed, without comment, the broader and more implausible claims to standing made by the plaintiff states, such as those based on lost tax revenue or so-called “quasi-sovereign” interests.194 Instead, it adopted the most concrete and modest theory of standing in the case — that the state of Missouri can sue because of harms suffered by the Missouri Higher Education Loan Authority (MOHELA), which the Court treated as “also a harm to Missouri.”195
The standing dispute turned on some fairly narrow points. All agreed that MOHELA would have had standing to sue on its own behalf, because it had lost money it otherwise could have collected by servicing the loans,196 so the only remaining question was whether Missouri could sue for that injury instead. The majority said yes, stressing the ways in which MOHELA was a state actor; the dissent said no, stressing the ways in which MOHELA’s property and legal personhood were separate from the state.197 In our view the dissent had the better of this argument, and we suspect that the majority’s conclusion would have been a great surprise to the Marshall Court, which distinguished the standing of government-created corporations from the government itself — most prominently when discussing the Bank of the United States.198
Perhaps the biggest point of disagreement between the majority and the dissent on standing was how to read the Court’s precedent in Arkansas v. Texas,199 where the state of Arkansas had standing to sue on behalf of the University of Arkansas. The majority believed that the University of Arkansas had a similarly separate legal personhood as MOHELA. It wrote: “[I]n Arkansas, the University of Arkansas could have asserted its rights under the contract on its own. . . . We permitted Arkansas to bring an original suit all the same.”200 While we have our doubts about that too, the majority’s reading of the case is at least plausible.201 So even if the Court was wrong to find standing, it found standing in the least wrong way.202 Of course, if the Court was straining to find standing because of its desire to stop an executive branch overreach,203 that is itself a problem.204
More important than these quibbles, the Court’s path to reaching the merits demonstrates inattention to the bigger standing picture. What about the remedial side of the case? The lower court had granted a national injunction pending appeal, which the Solicitor General had also challenged.205 After ruling against the Biden Administration on the merits, thanks to MOHELA, the Court ignored the remedial issue presented by the case below — dismissing the Solicitor General’s challenge to the injunction as “moot.”206
But is the Court really countenancing the possibility that a national injunction can issue against the Administration’s student loan forgiveness to forty-three million people, because of the modest standing claim of . . . MOHELA?207 That because one state agency has lost some of its finder’s fees, a lower federal court should have halted the entire national program? Why, in the lower courts, would the injuries to MOHELA (and apparently Missouri) not be fully redressed by ordering the United States to pay restitution to MOHELA (or Missouri)?208
Perhaps the Court was envisioning that even if the proper relief were narrow (which it neglected to tell the Eighth Circuit), everyone would treat a Supreme Court opinion as if it were a national injunction, thanks to the legacy of Cooper v. Aaron. As a practical matter, Supreme Court decisions often do have this effect, thanks to principles of vertical precedent, comity shown by the executive to another branch, and the general willingness of the public to accept the inevitable. Supreme Court opinions are often treated as de facto national injunctions. But they are not the same thing, and in Brackeen and United States v. Texas just days earlier, the Court had been carefully attentive to these distinctions. In Biden v. Nebraska it apparently could no longer maintain this attention.
It would be embarrassing for the Court to favor nationwide relief on the basis of such a flimsy injury. But to reject the relief given below would have required the Court to grapple with the problems of remedies and redressability, which it may not have been ready yet to do. Silence leaves this question, which is so very capable of repetition, for another day.
IV. The Enduring Choice Between Two Approaches to Standing
We have described the recent past and present of standing. But what is the future? Doctrine is one way to answer this question. Standing requires the proper parties. Standing requires an injury, not a circuitous and indirect injury, but a personal injury — even for a state. Standing requires available remedies that will redress the injury. And so on. If Massachusetts v. EPA and other developments have taken us off track, and if the Court is making a course correction, then maybe we are just back to doctrine as usual. That would be a tidy story with a satisfying ending.
Too tidy. In law, doctrinal rules are never enough. The rules are employed and applied by human beings in the setting of human institutions. To be sure, the application of legal rules is hemmed in by the rhetorical practices of legal argument — practices that constrain what is considered, and how it is considered, and by whom it is considered, and when it is considered. But while these practices constrain, they also liberate. Standing sets judges free to be judges, rather than carrying out some other commendable office of the state.
And rules and people are still not the full story. Judges employ and apply rules, including rules about standing, with a situation sense about what exactly it is that they are doing. And it is here that standing as a judicial practice is impossible to grasp if it is thought of merely as a collection of rules. Behind the use of these rules lie mindsets.
The first way to think about standing is as a body of external constraints. External, that is, in the sense of being external to the judge. Standing doctrine is a series of hurdles. This external concept of standing is roughly similar to an American football metaphor Justice Scalia used for common law judges, as seen through the eyes of a first-year law student:
[T]he great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal — good law.209
On this mindset, principles like standing are external to the judge, just as the opposing players are external to Justice Scalia’s runner. The runner wants to get around the opposing players, and once he has done so, he is moving on. Standing is a box the judge has to check before getting on to the interesting and motivating stuff.
Judges often talk about standing this way. For example, if a judge wants to know “Can I do this or is there any precedent to stop me?”, that suggests an external concept. Indeed, at oral argument in Biden v. Nebraska, Justice Alito pressed the Solicitor General of the United States to admit that there was no “case that presents precisely the issue that’s here.”210 It also fits how judges sometimes seem to act, even when they don’t talk about it. Judges sometimes seem “hungry” to get to the merits.211 In fact, that very charge was made by Justice Kagan against the majority in Biden v. Nebraska.212
A second way of thinking about standing is quite different. It sees the practice of standing not as an external obstacle to the judge, but as something the judge is supposed to internalize.213 You could think of standing as a judicial habit. It is an exercise in “judicial self-governance.”214
Standing, in other words, is a judicial virtue, an unwillingness to decide cases, no matter how attractive in achieving justice or preventing injustice, if the proper party is not before the court and a proper remedy is not available to that party. On this view, standing is a judicial kind of fortitude, with a reinforcing alloy of steady patience. In this concept of standing we can think of traditional virtues such as fortitude and patience being adapted to the role morality of the judge. And moral virtues always need to be internalized; they are never just about following the rules.
The importance of this way of thinking may be reinforced by the salience of equitable relief in public law cases. A judge who thinks of an injunction as the automatic result of satisfying a four-factor test, who thinks of things like “irreparable injury” and “balancing the equities” as merely hurdles to be gotten over before getting on with the business of correcting what’s wrong with the world — such a judge is not doing equity.215 Equity has always required an equitable mindset.216 And as more and more important public law cases involve equitable relief, that may be an additional reason that standing requires an internal mindset.
In each concept there is plenty to criticize and to praise.
One criticism of the external concept of standing is that it is manipulable.217 If standing doctrine is not the main thing, but a set of threshold obstacles to be gotten over if you can, then we should not be surprised if it is manipulated for a court to reach or avoid reaching the merits. This manipulation critique was recognized by the Supreme Court itself in United States v. Texas: “As this Court’s precedents amply demonstrate, Article III standing is not merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated . . . .”218
Yet there are also good grounds for the external concept of standing. One is that the ultimate aim of a legal system is in fact justice, not standing. Imagine a nation with an enormous court building, as large as the Library of Babel in Borges’s short story, with millions of rows of boxes, containing hundreds of millions of complaints, each one sorted with exquisite care into boxes labeled “standing” or “no standing,” awaiting a merits determination that will never come. Is this justice? Is this even a substantial step toward justice?
Correspondingly, the internal concept of standing can be criticized for its elevation of judicial inaction. The internal concept might lead to a world where all judges are taught at the knee of Alexander Bickel, and they overlearn their lessons. Or to use another image, judges might be like clerks overzealous in finding reasons not to grant a writ of certiorari. But judges exist to do things, to decide cases and grant remedies. The greatest judge is not the judge who can find a way to make sure every one of her cases is dismissed as nonjusticiable. Another way to put this is that the internal concept runs the risk of making standing the main thing.
But the internal concept has two great advantages, and we consider these two advantages decisive. First, it aligns with the reason we have standing doctrine in the first place. Standing is not meant to be a filter to ensure that judges get a small enough set of cases that they can give each one proper deliberation. If standing were a solution to overwork, then a court with a small caseload, or a self-chosen caseload, might not even need it. But courts should not just do the right number of things, but the right things. Standing is meant to ensure that we have in place the basic requirements for this social practice of adjudication. Proper parties and proper relief help us have proper courts, that is, courts acting as courts. Without proper parties and proper relief, judges may do all kinds of wonderful things, and what they are doing may be “[m]uch more rational,” “but it would not be near so much like a [court].”219
Second, the internal concept can partially ameliorate the manipulability concern. There is no “non-manipulable, serious version” of standing doctrine.220 But external rules that have no claim on the inner morality of a person are always more subject to manipulation. In part this is because the rules themselves offer one line of defense, whereas rules backed by habits or virtues offer two. But it is also because an individual who sees a rule as an external obstacle will be motivated to circumvent it, whereas an individual who internalizes a rule will be motivated to carry it out, even if that means new extensions to new circumstances. It is not an accident that moral teaching for millennia has emphasized the importance of this framing — rules we want to follow should not be framed as external. In the words of the Prophet Jeremiah, the law needs to be written on our hearts.221
The Court’s rules about state standing are getting better, and it increasingly appears that Massachusetts v. EPA is recognized as a wrong turn that threw the standing jurisprudence of the federal courts into confusion. But good rules about standing222 are not enough. They need to be internalized. They need to be framed by judges not only as hurdles to surmount, but as habits to make one’s own. A good court makes good decisions, but it only makes decisions as a court would — and that means giving proper relief to proper parties.
“Courts,” Judge Jerome Frank once wrote, “do business at retail, not at wholesale.”223 That assertion could be met with immediate challenges and qualifications, and Judge Frank anticipated one of them. He continued: “Wholesaling occurs in the stare decisis department, where the courts deliver pronouncements concerning the legal rules. But the facts of individual cases always ultimately divert the courts’ business into retail channels.”224 That Judge Frank’s point is still true at all, we think, is in large part due to the idea of standing. Standing requires proper parties and proper relief, and those requirements guide the courts toward retail decisionmaking. As Justice Kagan put it, standing is what makes a court “stay in its lane.”225
Yet as courts have come to govern so much of our political life, and as so many of us have come to expect them to do so, standing doctrine and its corresponding view of judicial power will always be under pressure. Unconstrained by such niceties, there is so much more a judge could do! This Term suggests that the Court is trying to nudge the judiciary toward the classical view of the judicial role, or at least toward the circa 2005 view of the judicial role, and if so that is a good development. But it will not be the end of the temptation. Constant pressure requires constant vigilance.
* Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
** John N. Matthews Professor of Law, University of Notre Dame. The authors thank Nick Bagley, Stephanie Barclay, A.J. Bellia, Curt Bradley, Aaron-Andrew Bruhl, Mike Dorf, Jack Goldsmith, Jacob Hamburger, Michael McConnell, Richard Re, and Stephen E. Sachs for helpful comments, and Drew Garden, Will Horvath, and Georgios Sarris for research assistance.