Guest Post: Paz-Priel & Re on "The Standing Realignment"

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

We have a new draft paper posted to SSRN, “The Standing Realignment.”

The abstract:

For many years, liberals have favored broad standing and conservatives narrow standing. Yet that pattern has disappeared and may be reversing. We studied the Supreme Court justices’ votes on standing during the fifteen-year period from October Term 2010 through October Term 2024. Our results show a stark change in voting patterns around October Term 2020, when the Court obtained a conservative supermajority. We label this development ‘the standing realignment,’ discuss several interrelated explanations, and suggest implications.

From the introduction:

Starting in October Term 2020, conservatives became much more likely to vote for standing, and liberals much less so. The traditional alignment is now gone. To the extent that a new alignment exists, conservatives lean toward standing and liberals against it. By our tabulation, for example, the two current justices who voted for standing most often were Justices Alito and Gorsuch, and the justice who voted against standing most often was Justice Jackson. That said, available evidence is necessarily limited, some tabulation decisions are disputable, and there is a large, cross-ideological “middle” group at the Court. The standing realignment’s full nature and consequences remain to be seen.

We also offered qualitative observations. Politically salient suits brought by states challenging federal government action were once treated skeptically by conservatives and favorably by liberals, as in Massachusetts v. EPA. Post-realignment, similar suits have been unanimously rebuffed by liberals and treated with varying degrees of receptivity by conservatives. The key cases here are Murthy v. Missouri, Biden v. Nebraska, United States v. Texas, and California v. Texas.

We focused on the Court’s plenary docket, but the shadow docket too shows signs of realignment. Justices Alito and Thomas have written or joined a string of recent shadow docket opinions arguing in favor of different forms of standing. Most notable is Parents Protecting Our Children v. Eau Claire Area School District, where Justice Alito dissented from a denial of certiorari to argue that the plaintiffs had standing and that the lower court had misapplied Clapper v. Amnesty International, which Alito had authored about a decade earlier.

Read more about the standing realignment here! Comments welcome.