Once More Into the Breach: The Incoherence of the Personal Injury Requirement for Standing

The Supreme Court’s fabricated standing doctrines are not grounded in text, history, tradition, or common sense. Standing case law is so incoherent that finding supporters of it is virtually impossible, and that includes folks on the left, right, and in the middle of the political spectrum.

The cause of much of the incoherence of standing doctrine is the requirement that plaintiffs suffer a personal injury (sometimes referred to as "injury-in-fact) separate from the legal violation they allege in their complaint. The Court grounds this requirement in the language in Article III that the federal “judicial power” only extends to “cases” or “controversies.” Pursuant to this key to unlock federal jurisdiction, it is not enough that a plaintiff alleges a violation of a federal statute or the Constitution. Instead, she must show damage to life, liberty, or property or on rare occasions, some other less tangible interest.

For example, taxpayers do not have standing to challenge spending decisions by the federal government that allegedly use taxpayer dollars illegally unless the plaintiffs show an injury separate from the illegal spending. There is a narrow and incomprehensible exception to that rule for people challenging a federal spending law they claim violates the first amendment's establishment clause. But those plaintiffs do not suffer any injury different from the many other plaintiffs who lack standing to bring suits against federal spending but whose claims are tethered to other constitutional limitations. 

I previously wrote on this blog about how that exception to the general rule was invented by a frustrated Supreme Court clerk who was given no choice but to draft an opinion, Flast v Cohen, that makes no sense. Decades after that case was decided, however, and after its reasoning (not the result) had been criticized by virtually everybody, the Court in Hein v. Freedom from Religion Foundation cut back on the scope of Flast but affirmed its irrational "nexus test," leading Justice Scalia to write the following in his concurrence:

Today’s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.

Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.

Justice Scalia was right about the incoherence of the Flast exception, which somehow is still good law, but wrong about his proposed solution--use the injury requirement to bar all suits where the plaintiff cannot identify an injury separate from the legal duty allegedly violated.

Scholars observed decades ago that whether a person suffers some injury separate from the violation of law is the wrong question to ask. The violation of the law is the injury. If that injury causes no damage, then deny or adjust the remedy. If the Court feels it should not wade into a particular sticky wicket, use the political question doctrine to dismiss the case. But when two parties disagree over something real, not hypothetical, and the case is ripe and not moot, there is no reason to deny jurisdiction because the plaintiff failed to articulate an injury separate from a violation of law. Article III requires a case or controversy but says nothing about personal injury.

Almost forty years ago, then Professor William Fletcher (now a Senior Ninth Circuit Judge) was so upset about the personal injury requirement (among other aspects of standing) that he started off a seminal law review article as follows: "The structure of standing law in the federal courts has long been criticized as incoherent. It has been described as 'permeated with sophistry,' as  'word game played by secret rules,' and more recently as a largely meaningless litany recited before "the Court . . . chooses up sides and decides the case."

As to the personal injury requirement, he argued that any plaintiff who claims to be injured, and who is telling the truth, is in fact injured. The real question is whether the law provides a cause of action for that injury. I'll use a modern version of a hypothetical he used in the article to make my point. If my neighbor's dog barks all night long with the result that I cannot sleep, have to seek medicine, and perform less well at my job, I could bring a tort action in court if state law allows me to do so, and no one would doubt my injuries are sufficient for standing.

But if I can't sleep at night because I am so upset by President Trump's lies and policies, and I suffer exactly the same injuries, and my doctor and employer testify under oath how my lack of sleep has caused my injuries, I cannot sue because no statute or other source of law gives me the right to sue. That is not a standing problem but a merits problem. I am still "injured-in-fact," but I have no legal redress as a merits, not jurisdictional, matter.

All of which brings us to a new article by my colleagues Clark Cunningham and Ute Romer-Barron that is the latest installment in the battle against the personal injury requirement but with two fascinating twists. The first is that the article emphasizes that a prominent and conservative judge long associated with the Federalist Society, Kevin Newsom of the Eleventh Circuit (a short lister for the Supreme Court), wrote an opinion a few years ago castigating the personal injury requirement and almost begging the Supreme Court to eliminate it. The second is that the authors use corpus linguistics (of which I am admittedly not a fan) to show that the word “case” as understood at the time of ratification, and as used in Article III, did not include the requirement of an injury separate from the violation of a legal duty.

As readers of this blog know, I am no originalist. For those who are, and who are not hypocrites like our current self-identified originalists on the Court, the authors show clearly what famed originalist Raoul Berger and the second Justice Harlan agreed with over fifty years ago: based on text and history, there should not be a personal injury requirement as part of the standing analysis. Berger reached this conclusion in a famous law review article, and Harlan did the same in his well-reasoned dissent in Flast itself. Of course, neither had access to corpus linguistics, and this new article supports their conclusions using that tool.

Judge Newsom’s comments about standing are discussed at length in the article but they cannot be repeated enough. He made them in a concurring opinion in Sierra v. City of Hallandale Beach Florida. I hope the following quote inspires those who care about standing to read both Newsom’s opinion and the article by Professors Cunningham and Romer-Barron:

There is a far more natural and straightforward reading of the word “Case” than one that turns on the existence of an “injury in fact”: An Article III “Case” exists so long as—and whenever—a plaintiff has a cause of action, whether arising from the common law, emanating from the Constitution, or conferred by statute. And a plaintiff has a cause of action, as I use the term here, whenever he can show (1) that his legal rights have been violated and (2) that the law authorizes him to seek judicial relief....

[A] legal injury can exist without an injury “in fact,” (2) an injury “in fact” doesn't necessarily entail a legal injury, and thus (3) injury “in fact” was neither a necessary nor a sufficient condition for an Article III “Case.” By contrast, the same concepts demonstrate that the existence of a legal injury, an injury at law, was both a necessary and a sufficient condition.

Judge Newsom is right, as were Raoul Berger, Justice Harlan, Judge Fletcher, and scores of academics writing over the last fifty years. Despite all that criticism, however, Professors Cunningham and Romer-Baron have made an important contribution to the flood of scholarly and judicial angst over the Court's creation of a personal injury requirement for standing. I strongly recommend their new article.

-- Eric Segall