Standing and the Role of Federal Courts: Triple Error Decisions in Clapper V. Amnesty International USA and City of Los Angeles V. Lyons

The question of standing is a subcategory of justiciability doctrine, which fundamentally concerns a set of questions about the role of the judiciary in U.S. constitutional democracy. What makes these questions fraught, and complex, is that among the rights deserving of protection in any constitutional democracy is the structural right to democratic self-governance, a right that is arguably at risk whenever courts are asked to invalidate government action authorized by democratically elected bodies in enacted laws in order to protect other rights constitutionally secured to individuals.1 The U.S. Supreme Court has long been accused of unprincipled manipulation of standing and other justiciability doctrines.2 But some degree of inconsistency in justiciability doctrines' application may be inevitable across the wide range of substantive issues that arise as the federal courts, headed by the Supreme Court, seek to find a proper balance between their role in redressing or preventing violations of constitutional rights and limits on the one hand, and an understandable hesitation about interfering in the process (and rights) of self-governance on the other.Determinations of justiciability were at the heart of Alexander Bickel's argument for the "passive virtues," involving what Bickel called a power to "decline the exercise of jurisdiction" in some cases.* * 3 This power, he argued, was necessary to allow the Court, "existing] in the Lincolnian tension between principle and expediency," to play its importantly countermajoritarian role in other cases.4 In his Harvard Foreword, Bickel implied that the Court, even if it is not as "principled" in deciding not to decide as it must be in deciding the merits, must remain a forum of "decency and reason"; it must not engage in undisciplined or merely "expedient" decisionmaking, but must be governed by standards of "prudence."5 For Gerald Gunther, however, Bickel's arguments for prudential avoidance of full merits decision were too great a threat to the Court's role as principled adjudicator.6Considerations of "prudence" are reflected across standing doctrine. As Bickel argued, "standing" originally meant that the courts "may not decide non-cases, which are not adversary situations and in which nothing of immediate consequence to the parties turns on the results," and that further development of standing reflects the Court's development of doctrine that essentially "declined" to exercise a jurisdiction it lawfully had.7 Thus, as Bickel's work suggests, much of the Court's doctrine, though denoted as "constitutional" as opposed to "prudential" by the Court,8 can be regarded as reflecting considerations of prudence rather than ineluctable understandings of the constitutional terms "case" or "controversy."9 In the philosophy of Aquinas, prudence was a form of wisdom, distinct from but allied to justice as a cardinal virtue.10 The well-known disputes between Bickel and Gunther might be taken to raise questions of whether prudence can be married to sufficiently principled reason. Or is the idea of a reasoned or principled prudence an oxymoron?11Standing doctrine presents an interesting test case.12 Some applications of standing doctrine, reflecting genuine concerns about whether the particular party invoking jurisdiction has the appropriate connection to the subject matter, rely on reasoning that has only limited effects in excluding Article III courts from adjudicating an issue.13 In such cases, whether the decision is fully principled or not, the prudential arguments to withhold jurisdiction are supported by the likelihood that another party will soon be able to challenge similar conduct. But standing is sometimes used by the Court to shelter large swathes of governmental conduct from the most effective forms of judicial review, as in these two cases separated by three decades: Clapper v. Amnesty International USA14 and City of Los Angeles v. Lyons}5 In these cases, I will argue, the Court's decisions have the virtues of neither consistency with well-established principle, nor of wisdom. …