The Supreme Court is making major decisions this year on student loans, affirmative action and election law. But in at least two cases, USA v. Texas on immigration law and the Biden student loan forgiveness lawsuit, the justices aren’t only deciding who wins and who loses based on the merits, but whether the plaintiffs have standing to sue in the first place.
But why do judges consider standing and how?
Professor Carolyn Shapiro, associate dean at the Chicago-Kent College of Law and co-director of the Institute on the Supreme Court of the United States, joined Straight Arrow News to explain.
Ray Bogan: “Why does the Supreme Court, or any court for that matter, make decisions on standing?”
Carolyn Shapiro: “Under the federal constitution, as it’s been interpreted, the federal courts can only decide what are known as cases and controversies. They can’t decide abstract questions. And there are a series of tests that are used to determine if something is a real case or controversy. It has to be some kind of live disagreement between the parties. It has to be something where a court ruling could alter the legal relationship between the parties. And the plaintiff has to have standing, which means the plaintiff has to show that whatever it is they’re suing over, has given rise to some kind of particularized injury to them.”
“It can’t be simply, ‘I don’t like what the government is doing and I think it’s illegal.’ It has to be something that has caused a more particularized injury to the individual plaintiff. And it’s very clear in the very long standing case law, that if there isn’t jurisdiction, which includes the standing requirement, then the federal courts simply cannot decide the case.”
“So where there’s a real question about standing, where it’s been raised, the court is obligated to make a determination about whether there’s standing or whether there’s jurisdiction and other respects before it can get to the merits.”
Bogan: “So is this, in other words, just making sure that anyone who’s unhappy with something can’t just go ahead and file a lawsuit?”
Shapiro: “That’s part of it. The court doesn’t want people to say, ‘Well, I just don’t like the way my tax dollars are being spent so I’m going to sue over this.’ Or ‘I think the government isn’t following its own rules or isn’t following the law. And even though it doesn’t affect me in any way, other than I just don’t like it, I’m going to sue over that.’ So yes, it is trying to prevent those kinds of lawsuits that are somewhat abstract and that anybody in the country could bring at any time.”
Bogan: “As a former Supreme Court clerk for retired Justice Stephen Breyer, you of all people know it can take years to get a case before the Supreme Court. How does it get that far for the justices to then come back and decide, ‘You know what, it turns out after all that you weren’t allowed to file this lawsuit in the first place?’”
Shapiro: “Well, in these cases, standing has been raised in the lower courts. It’s not that it’s a surprise to anybody that remains an issue. So, it does occasionally happen that a case gets to the Supreme Court and somebody says, ‘Oh, hold on, wait a minute. There’s no standing’ or ‘there’s no jurisdiction.’ But that’s relatively unusual and it generally involves some kind of changed circumstance from when the case was originally filed. In these cases, everybody knows that standing was going to be at issue from the beginning.”
