Document Type

Article

Publication Date

2009

Abstract

Although scholars have long criticized the standing doctrine for its malleability, its incoherence, and its inconsistent application, few have considered whether this chaos is related to the Court's insistence that standing be used as a tool to maintain separation of powers. Most articles on standing, at least those written in the last thirty years, do not question whether standing should be freighted with separation of powers principles, but whether the standing doctrine, as applied in a given case, is consistent with those principles. These treatments, which largely accept that the constitutional aspect of standing derives from separation of powers, are unsatisfying because they do not effectively consider the more fundamental query-i.e., why has a political concept (separation of powers) been attached to a legal framework (standing)? Nothing in the general conception of separation of powers would seem to require the intricate standing rules the Court has developed.

This Article addresses why the Supreme Court under Chief Justice Warren Burger began to deploy separation of powers language when evaluating whether a particular plaintiff had standing to sue the federal government, and why this trend continued through William Rehnquist's tenure as Chief Justice and affects the Roberts Court today. My analysis indicates that the Burger and Rehnquist Courts radically changed the standing inquiry by freighting it with political concepts, and in so doing were able to weaken the rights-based constitutionalism that had marked the Warren Court era. This, in tum, made more room for executive branch policy-making and action. I conclude that the standing decisions of the Burger and Rehnquist Courts, by merging the legal discourse of standing to sue with the political discourse of separation of powers, laid the foundation for the Roberts Court to initiate a move away from a rights-based jurisprudence to a jurisprudence that provides constitutional space for a unitary executive.

Comments

Originally published in vol. 59 of Case Western Reserve Law Review.

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