Wednesday, June 19, 2019

Standing is What Standing Does: The Incoherence of the Personal Injury Requirement

By Eric Segall

On Monday, the Supreme Court by a 5-4 vote held that the Virginia House of Delegates did not have Article III standing to appeal a three-judge lower court opinion declaring unconstitutional the state's redistricting efforts and replacing the state's map with one the Court created. There may (or may not) be valid reasons for the Court to decline to hear the case, but lack of Article III standing should not have been the basis for the decision.

Article III limits the federal judicial power to cases or controversies. Virtually everyone agrees that the federal courts lack power to decide hypothetical questions where nothing real is at stake. The Court, however, has interpreted Article III to require that all plaintiffs in federal court also show that they have been 1) personally injured 2) by the actions of the defendant and that 3) the relief requested will redress their injury. Article III does not mention personal injury as a prerequisite to the exercise of judicial power, and there is a strong case that the requirement is inconsistent with the Constitution's original meaning.

The majority opinion, written by Justice Ginsburg, gave two reasons why the Virginia House of Delegates (one House of Virginia's bicameral legislature) did not meet Article III's standing requirements. First, as a matter of state law, Virginia places exclusive litigation authority on behalf of the state in the state's attorney general, who decided for partisan reasons not to appeal the case. It is a bit unclear why this state law ground was insufficient to decide the case, but unfortunately the majority went on to also hold that the Virginia House of Delegates suffered no injury sufficient to satisfy Article III standards. As Justice Alito asked in dissent, "Really?"

Justice Ginsburg and the majority held that as an institution the House of Delegates did not suffer personal injury largely because “the House as an institution has no cognizable interest in the identity of its members" even though the court's redistricting plan “may affect the membership of the chamber” or the “content of legislation its future members may elect to enact.” This conclusion is obviously incorrect as a factual matter. Of course the House of Delegates has a strong interest in  how its members are elected and, if the House feels the court-drawn map violates its constitutional rights, its injury is obvious. As Justice Alito also said:
It seems obvious that any group consisting of members who must work together to achieve the group’s aims has a keen interest in the identity of its members, and it follows that the group also has a strong interest in how its members are selected. And what is more important to such a group than the content of its work?
To find that the House had no standing, the majority had to distinguish several cases allowing individual legislators or single houses of a bicameral legislature to bring lawsuits. Perhaps those cases were distinguishable, though the dissent presented reasonable arguments that those cases should have controlled. The reality is that relevant precedents could have supported either standing or no standing.

The real problem with both the majority and dissenting opinions is their failure to appreciate how much doctrinal incoherence has been caused by the Court's fabrication of a personal injury requirement for all federal court plaintiffs separate from the legal claims asserted by those plaintiffs. As Judge William Fletcher argued many years ago, the personal injury requirement has caused standing law to be "permeated with sophistry," and to be "a word game played by secret rules."

Whether someone has suffered a legally sufficient injury should always or almost always be a question on the merits. If the Constitution or a federal statute protects an interest, then by definition government abridgment of that interest causes the plaintiff injury. Why should a plaintiff have to show more than she has a right protected by law, and the government has taken away that right? As Professor Ernie Young has said, "injuries are always suffered with respect to some interest, and the relevant interests are typically related to, if not created by, the substantive rule of law that gives rise to the underlying claim."

Adapting a famous hypothetical Judge Fletcher provided in his classic article demonstrates why the personal injury requirement makes little sense. Imagine that I am so troubled by President Trump's immigration policy that I can't sleep at night, I miss work, and I have to see a doctor to obtain medication to help me sleep. If I sued the President, the courts would likely find I haven't suffered any injury sufficient to satisfy Article III because I am not personally subject to Trump's immigration policies. But we know that is wrong because if my lack of sleep was caused by my neighbor's dog barking, state nuisance law would provide a remedy for that very same injury. What is missing in the immigration case is not a lack of personal injury but a legally protected interest. But we can only discover whether I have a legally protected interest by looking at the merits of my claim.

Whether or not the Virginia House of Delegates has been injured when how its members are chosen has been dictated by a federal court against its will should be an easy question. As Alito noted: "Does a string quartet have an interest in the identity of its cellist? Does a basketball team have an interest in the identity of its point guard? Does a board of directors have an interest in the identity of its chairperson? Does it matter to these groups how their members are selected? Do these groups care if the selection method affects their performance? Of course." The majority evaded this argument not so much by addressing it head on but by relying on prior cases discussing the personal injury requirement. But all of those cases suffered from the same flaw: whether or not a litigant has been injured in a legal manner depends on the claim asserted, not a subjective judicial judgment about whether the plaintiff has been injured in some objective sense.

The Virginia House of Delegates case will simply add to the already incoherent law of standing. If the Court didn't want to decide the case, it could simply have held that, as a federalism matter, federal courts should not entertain lawsuits brought by only one house of a state bicameral legislature (the original lawsuit was brought on behalf of the state by the attorney general). In fact, in most cases, there are numerous ways for federal courts to avoid the merits if the judges so desire. The political question doctrine, abstention, and general notions of comity and separation of powers could all be employed by judges to avoid hearing cases they feel are inappropriate to resolve. Of course, applying these rules in a principled manner might be impossible, but at least the courts would be more transparent in their rejection of the plaintiff's claims. Saying the Virginia House of Delegates suffered no injury when its member are elected by maps the House claims are illegally drawn not only makes little sense, but is unlikely the actual basis for the Court's decision.

The personal injury requirement for federal court jurisdiction has little or no basis in the text or history of Article III. When a plaintiff comes to court alleging a right protected by the Constitution or a federal statute, the real issue is whether he has stated a viable claim. The personal injury requirement interferes improperly with that inquiry and has led to conflicting Supreme Court decisions that have confused the lower courts and led to great unpredictability about which cases the Court will or will not hear. It is long past time for the Court to re-examine its standing doctrine, and until that happens, the most we can can say about this area of federal jurisdiction is that standing is what standing does, one case at a time.


Joe said...

Thanks for this interesting discussion.

After I saw your tweet on the opinion, I read the opinions (quick read) and do find the second grounds for denying standing dubious. One commentator noted that the real reason was because they wanted to avoid deciding the merits of this sort of case but as you note even there they could have used another technique. A sort of "prudential" argument of sorts. The best path there is to be aboveboard, realizing they are making a choice.

Justice Breyer joined the dissent but if his vote was necessary (the mix in the majority is a bit curious and perhaps it flags how upcoming gerrymandering cases will be decided), I wonder if he would have went along. He's a pragmatic sort and probably preferred the "punt."

Asher Steinberg said...

"if the House feels the court-drawn map violates its constitutional rights, its injury is obvious."

But it doesn't feel that, I believe. What it feels is that the district court's determination that the map they drew violates the plaintiffs' constitutional rights is wrong. And it feels that determination has harmed it. Now, obviously it can't be the law that any old person who thinks the district court is wrong and feels harmed by its decision or says it is can intervene to defend the constitutionality of a law that the state enacting it doesn't want to defend. So we need some kind of defendant/intervenor appellate standing doctrine, and likely one that turns on injury, that's separable from the merits. Your suggestion that we just look to the merits doesn't work here or in cases like this, because the defendant/defendant-side intervenor has and doesn't claim to have any cause of action. It just says the plaintiff should lose, from which it obviously can't follow that a court must entertain an appeal from anyone who says so. You really, here, do need a standing doctrine of some kind that's separable from the merits, because the defendant or intervened has no claim the merits of which you can collapse standing into. Now, the necessity of such a doctrine does not by any means entail the correctness of the version of it we see in this opinion.

Eric Segall said...

The point is whether or not to allow the appeal should be decided by reference to the appellants’ legal claims not some unrelated issue of personal injury separate from those claims.