By Mike Dorf
In my latest FindLaw column, I discuss the cert grant in Bond v. United States, which poses the question whether a private party has standing to complain that a law exceeds congressional power under the 10th Amendment. Because the answer is "duh, yes," I use the column mostly to explore the underlying merits of Bond, in particular the question of whether the current Supreme Court still views the treaty power as a freestanding source of power for Congress to regulate in subject-matter areas that would otherwise be beyond its competence.
Here I want to raise a question about standing doctrine more generally: Is it a Frankenstein's monster? First, let me define my terms. The Frankenstein story--like some of the medieval Jewish golem stories on which it is arguably based, as well as the sorcerer's apprentice story, and tales of the genie unleashed from his bottle--contains the following basic theme: A monster is created to do its creator's bidding against the creator's enemies but then the monster turns on the creator himself. In judge-made law, a Frankenstein's monster would be a doctrine that takes on a life of its own and ends up undermining the goals for which it was originally created.
Modern standing doctrine is traceable in one way or another to the early Republic, when the Supreme Court refused to give advisory opinions. Someone who comes before an Article III court seeking to litigate an issue in which he lacks a concrete stake can be said to seek an advisory opinion. But modern standing doctrine takes the advisory opinion rationale much farther than it went in the early Republic. It is largely a creature of the 1970s when conservative Justices turned to standing doctrine to make it harder for civil rights claimants and other plaintiffs to have their cases heard. To a substantial degree, it supplanted the political question doctrine, which had done that same work in earlier times.
But the law of standing, once articulated, can block all sorts of claims, not just those that conservatives would want to see defeated. Thus, in Bond, the Third Circuit used standing doctrine to block a states' rights claimant. And in Perry v. Schwarzenegger, standing doctrine could end up blocking the appellate defense of California's Prop 8.
To be sure, there is a sense in which Dr. Frankenstein--aka SCOTUS--needn't worry about its monster turning on himself: When standing doctrine is invoked to block claimants pressing conservative arguments, the Court can always find distinctions. Thus, the modern cases make it hard for environmental plaintiffs to bring their claims and relatively easy for white plaintiffs challenging affirmative action programs to press their claims. The Justices have given reasons why the situations are different, but it's hard not to see their underlying attitudes towards the merits as coloring their conclusions.
In any event, there are at least two limits to the Court's ability to slay its monster. First, in order for the Justices to permit standing in the cases that they like and deny it in cases they dislike, there needs to be some wiggle room in the doctrine, and the doctrine is not infinitely wiggly. Second, and relatedly, the more wiggle room the Court puts in the doctrine, the more it will allow lower court judges with different substantive sympathies to come out the other way--permitting standing for claims that liberals like while disallowing standing for claims that conservatives like. And because there are a lot of cases out there, the Court can't take all of them. Thus, in this area and in others, if SCOTUS wants to maintain the law in a sufficiently malleable condition for it to reach whatever results it likes, it gives the same freedom to lower court judges, creating a Frankenstein's monster.