![handle is hein.journals/gwargu92 and id is 1 raw text is:
The Court That Does Not Let Standing Stand
in Its Way
Alan B. Morrison*
ABSTRACT
Article III of the Constitution limits the power of the federal courts to
adjudicating cases and controversies. Embedded in that concept are the separate
and sometimes overlapping doctrines of standing, ripeness, political question,
mootness, and the overall responsibility of the courts to assure both that they are
deciding legal issues only where there are real parties with an actual dispute
between them and that a court is the proper institution to resolve it. That proposition
is not in dispute, but, as Biden v. Nebraska demonstrates, its application to
particular cases is very much a source of disagreement.
Traditionally, the Supreme Court has been quite strict on standing, in my view
more so than is necessary or appropriate in some cases. But under the Roberts
Court, these barriers have come down, at least in those cases where the
conservative majority wishes to reach the merits. That change has not been across
the board, and its selectivity is one of its problems. From the perspective of this
observer, under the Roberts Court, the requirements ofArticle III are relaxed when
the majority is eager to decide a case that enables the conservative majority to do
what it did in Nebraska: issue a decision that is consistent with its policy
preferences.
TABLE OF CONTENTS
IN TR O D U C TIO N ......................................................................................... .. 1
I. THE TRADITIONAL VIEW: FOUR EXAMPLES .................................. 3
II. STANDING ON D EM AND .................................................................. 5
C O N C L U SIO N .......................................................................................... .. 17
INTRODUCTION
[The rules on standing] may sound technical, but they enforce
fundamental limits on federal judicial power. They keep courts
acting like courts. Or stated the other way around, they prevent
courts from acting like this Court does today. The plaintiffs in this
case are six States that have no personal stake in the Secretary's
loan forgiveness plan. They are classic ideological plaintiffs: They
think the plan a very bad idea, but they are no worse off because the
Secretary differs. In giving those States a forum-in adjudicating
their complaint-the Court forgets its proper role. The Court acts
* Associate Dean, George Washington University Law School, where he teaches civil
procedure and constitutional law. He has participated as counsel for a party or an amicus in a
number of the cases discussed in this Essay.
September 2023 Vol. 92 Arg
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