Wednesday, June 20, 2018

Fourth Amendment and Article III Standing

by Sherry F. Colb

My column for this week considers the recent case of Byrd v. United States. The US Supreme Court held there that if police unreasonably search a rental car, then the driver of that car who is in lawful possession of it has standing to object to the admission of evidence found during the search. In other words, you do not need to be the renter or have your name on the rental agreement list of authorized drivers in order to enjoy a reasonable expectation of privacy in the concealed portions of the car, such as the trunk. I explain in my column that this outcome is positive for two reasons: it takes Fourth Amendment privacy doctrine away from pure property concepts, and it broadens (or at least fails to narrow) standing so as to permit more people to hold police accountable for Fourth Amendment violations by excluding evidence obtained as a result.

In this post, I want to suggest that not only is Fourth Amendment standing doctrine a misguided endeavor, for reasons that I elaborate in greater detail here, but Article III standing doctrine would be better discarded as well.


Under the Supreme Court's reading of Article III of the Constitution, providing that federal courts may adjudicate a "case or controversy," someone who wants to bring litigation before the federal courts must demonstrate that she has suffered or will imminently suffer an injury, that the injury was caused by the defendant, and that the injury is redressable by the courts. Absent these conditions, a court ruling on the question presented to it would be issuing an advisory opinion and thereby violating the case or controversy requirement. If you notice that a particular university (or more than one) tolerates the rape of female by male students and does virtually nothing about it, you cannot bring a Title IX suit to federal court, because it is not you who suffers as a result of the university's misconduct.

Sometimes, it is not just you or I who lack standing. People engage in misconduct that results in harm, but no one can  claim to be suffering directly from that misconduct. A particular practice might be contributing to water pollution and global climate change, for example, but no one lives in or visits the area that is at issue. No one has standing to challenge the practice.

Why does it matter that no one has standing? Because the conduct is offensive or objectionable, and someone wants to sue over it. That someone will put forward all of the arguments she can for why she should win, and the targeted practice should come to an end. Standing doctrine, however, means that no one might be able to bring the challenge, no matter how meritorious it might be.

People who defend standing doctrine sometimes say that only a person who has an obvious stake in the matter, someone who stands to suffer personal injury, will be motivated to do the best job possible in presenting the concrete facts of the case. Someone who just cares about the issue but lacks a personal stake may leave out strong arguments or do a poor job.

These concerns sound valid, but they are not. In reality, organizations that care about issues seek out plaintiffs with standing and then bring their cases, making the same arguments they were planning to make all along and essentially utilizing the identified plaintiffs as a front person for the litigation. One example is the current lawsuit against Harvard for allegedly discriminating against Asian Americans. It was Edward Blum's idea to bring the lawsuit, because he wants what he calls a merit system in which neither affirmative action nor the exclusion of highly qualified Asians (or Jews or other "model minorities") can happen. The Asian applicants are a vehicle for Blum to press his cause.

My own view of Blum's litigation is that while there is no excuse for Harvard's excluding Asian applicants with the same scores as or higher scores than white applicants, the war on affirmative action is wrong. I suspect that Blum, like so many people who can go through life blissfully unaware of what African Americans continue to endure in this country, imagines that nothing external holds back African American children and adults in this day and age and that we now live in a colorblind society. He is wrong about that, as even a casual glance at how segregated our housing is and how racialized our wealth distribution continues to be demonstrates.

Nonetheless, I do not think anyone believes that Ed Blum would fail to make all of the arguments there are to make for forcing Harvard to treat its Asian applicants just as well as its white applicants. Even if he did not have to present Asian American plaintiffs, he would have sought assistance from someone who could study the admissions disparities at Harvard and look at notes where Harvard admissions officers allegedly give their white applicants more "personality" points than they give their  Asian applicants. And in a previous lawsuit architected by Blum, I imagine that white people who hate affirmative action would have felt well represented by Blum, with or without Abigail Fisher.

Conversely, there are individual plaintiffs who have a lot at stake in a particular litigation but who lack the resources to develop a strong case. When that happens, an organization that cares about the issue might well beg to be involved in the lawsuit so that the concrete real-life plaintiff does not ruin things for the cause. A dedicated organization is also unlikely to settle for a generous amount of money and let go of the possibility of actually winning.

Requiring a concrete plaintiff who has some cognizable injury for which to litigate therefore does not promote an interest in able representation of the issues. There are other justifications sometimes offered for standing doctrine, but this one at least is misguided. In every case, we want someone who cares enough about the issue to give it everything they have and to work with other people who can help them offer the best defense of their position that can be mobilized. Once we have that, we have what we need. Standing then serves only as an impediment to allowing cases to go forward and reach a resolution.
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