Guest Post: Paz-Priel & Re, An Update on the Standing Realignment

Another Post by Yoav Paz-Priel and Richard Re on Their Joint Paper

We have posted an expanded and updated version of our paper The Standing Realignment, which is now forthcoming in the Supreme Court Review.

The paper studies the justices’ votes on standing during October Terms 2010 through 2024. We show that, from October Term 2020 onward, conservatives became much more likely to vote for standing, and liberals became much more likely to vote against it. We further argue that this standing realignment resulted from the fact that conservatives garnered a strong Court majority in 2020.

The new version of the paper contains some new material. We would like to flag two points here.

First, we have added a discussion of how the standing realignment challenges the commonplace view that standing is merely political.

Many commentators have argued that justices vote for ideologically preferred parties when ruling on standing. On that picture, principles of standing are little more than rhetorical ornamentation. From October Term 2010 through 2019, that pattern largely held true in cases where standing was contested. In cases with a clear ideological valence and disagreement on standing, in other words, the justices’ votes generally tracked their ideological leanings.

After 2020, however, there are many examples of non-ideological standing votes in cases featuring disagreement among the justices. In other words, there are many instances of conservatives voting against standing for conservative-coded plaintiffs as well in favor of standing for liberal-coded plaintiffs. And a similar if less emphatic statement can be made about the liberal justices. Examples can be found in California v. Texas, United States v. Texas, Murthy v. Missouri, Reed v. Goertz, FDA v. Alliance for Hippocratic Medicine, and Diamond Alternative Energy v. EPA. (Of course, these cases also included ideologically consistent standing votes.)

We believe that these frequent, salient instances of non-ideological voting on standing are the result of the doctrinal uncertainty occasioned by the realignment. The justices substantially adhere to principles of standing selected in part under the influence of ideology and strategy. The standing realignment means that those principles are shifting, yielding more experimental litigation. As a result, the justices have more opportunities to vote consistent with their principles and against their ideological affinities.

Standing principles were always there, playing a significant albeit limited role. The standing realignment has simply brought those principles to the surface, even as (or because) it is causing those principles to change. In this sense, recent standing case law reveals the roles of both principle and politics.

Second, we have added discussion of Bost v. Illinois State Board of Elections, which was decided just last month (and so lies outside our quantitative study). Bost created a new per se rule in favor of standing for candidates challenging ballot counting procedures. This remarkably pro-standing decision rested on fairness considerations and attracted conservative support. Apart from its author, the Chief Justice, the majority opinion was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.

Justice Barrett, joined by Justice Kagan, concurred in the judgment, finding standing exclusively based on a more conventional theory of injury in fact. However, the Barrett-Kagan theory was rejected by every other justice. In the view of most justices, the plaintiff’s complaint simply did not allege facts adequately supportive of this theory, rendering any risk of traditional injury speculative.

Justice Jackson, joined by Justice Sotomayor, dissented. These liberal justices rejected all available theories of standing. The dissent drew on salient conservative standing denials such as Clapper v. Amnesty International and Los Angeles v. Lyons. A decade ago, it would have been jarring for the most liberal justices to be the most skeptical of standing. Today, however, that situation has become routine.

Apart from Biden v. Nebraska, Bost offers the starkest illustration to date of the standing realignment. Other cases this term will shed additional light on the ongoing standing realignment—which is itself just one legal realignment among others.