Introduction
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.
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