Congress, Separation of Powers, and Standing

Plaintiffs must satisfy certain standing requirements before they may bring a civil action in federal court. Typically a plaintiff must have been injured in particular way, the injury was caused by the defendant's conduct, and it is capable of being redressed by the relief granted by the court. This article, a contribution to a symposium on Access to the Courts in the Roberts Era, revisits these requirements in light of (1) several cases decided in the early years of the Roberts Court, (2) the new members of the Court, and (3) the considerable and continuing scholarly debate over the role of Congress in statutorily providing for Congress. Part II of the article briefly sets out the standing requirements. Part III addresses the views on standing of the most recent additions to the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, before they joined the Court. Part IV addresses, in three sections, the standing decisions of the initial Terms of the Roberts Court. The first section of that part discusses and dismisses the utility of a purely originalist approach to determining standing. The second section discusses recent cases which have addressed the limitations separation of powers concerns place on standing sought by taxpayers, or by states as plaintiffs. The third section considers from various perspectives the role of Congress in providing for standing by statute, and the appropriate response of federal courts in applying those statutes. The article concludes in Part V by addressing the likely future of standing in the Roberts Court and in the Obama Presidency