3.1 Standing

Updated 2017 by Jeffrey S. Gutman

Attorneys need to understand the law of standing in order to minimize the likelihood of having to litigate the issue. Avoiding a standing defense requires a careful selection of plaintiffs, thoughtful choice of claims and relief sought, and specific allegation of facts in the complaint. Skillful pleading, therefore, should focus not only on the merits of the claims but also on the standing of the plaintiffs to advance them. Failure to do so may result in delay of the case at best, and dismissal of the case at worst.

3.1.A. Overview

The law of standing has its roots in Article III’s case and controversy requirement.1 The U.S. Supreme Court has established a three-part test for standing. The “irreducible constitutional minimum of standing” requires the plaintiff to establish:

First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”2

While the standing test is easily stated, it can be difficult to apply. The Supreme Court has observed that “[g]eneralizations about standing to sue are largely worthless as such.”3

The Supreme Court also imposes “prudential” limitations on standing to ensure sufficient "concrete adverseness."4 These include limitations on the right of a litigant to raise another person’s legal rights, a rule barring adjudication of generalized grievances more appropriately addressed legislatively, and the requirement that a plaintiff’s complaint must fall within the zone of interests protected by the statute at issue.5

The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff.6 At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden.7 Standing must exist on the date the complaint is filed and throughout the litigation.8 Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte.9 Finally, plaintiffs must demonstrate standing for each claim and each request for relief.10  There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts.11

In this Chapter, we canvass the important Supreme Court cases on standing and attempt to extract useful generalizations to employ in practice. A brief caveat is in order. Standing cases are very fact specific. While the general discussion here may assist you in understanding the outlines of the standing inquiry, you will need to do specialized research in the area in which your case arises. Just as important, you must carefully interview your clients and perform other necessary factual investigation to assess precisely how your client has or will be injured by the action or policy you contemplate challenging.

3.1.B. The Constitutional and Prudential Requirements of Standing

Inherent in the constitutional limitation of judicial power on cases and controversies is the requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public interest law litigation involving claims of non-economic loss has forced the Supreme Court to craft an analytical framework for determining whether the requisite adversity is present. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests. By establishing that they personally suffered injury, plaintiffs demonstrate that they are sufficiently associated with the controversy to be permitted to litigate it. The question of injury raises two questions – (1) what kinds of injuries count for purposes of standing and (2) how certain the injury must be if it has not yet occurred.

3.1.B.1. Injury in Fact

The Supreme Court has held that, to satisfy the injury in fact requirement, a party seeking to invoke the jurisdiction of a federal court must show three things: (1) "an invasion of a legally protected interest," (2) that is "concrete and particularized," and (3) "actual or imminent, not conjectural or hypothetical."12 The following section discusses several types of injuries considered by the Supreme Court in determining whether there is a legally protected interest.

3.1.B.1.a. Economic Interests

The Supreme Court has had no difficultly determining that economic interests are legally protected interests.13 More difficult is determining when economic injury that has yet to occur is sufficiently imminent and likely to confer standing. The Court has been relatively forgiving in this regard. Economic injury need not have already occurred but can result from policies that, for example, are likely to deprive the plaintiff of a competitive advantage or a bargaining chip.14 In Clinton v. New York, for instance, the Court held that New York had standing to challenge the veto of legislation permitting the state to keep disputed Medicaid funds.15 The veto left the state’s ability to retain the funds uncertain, subject to the outcome of a request for a waiver. Despite this uncertainty, the Court regarded the “revival of a substantial contingent liability” sufficient to confer standing.16

Noting that states are to be given “special solicitude” in the standing analysis because of their stake in protecting their “quasi-sovereign” interests, the Supreme Court held that Massachusetts had demonstrated an economic injury in the recent “global warming” case.17 Massachusetts, other states, cities and private organizations petitioned the Environmental Protection Agency to regulate greenhouse gas emissions under the Clean Air Act. The plaintiffs challenged the Environmental Protection Agency's subsequent decision not to do so on the ground that it lacked statutory authority and if it did, that setting emissions standards at that time was unwise. Relying on declarations by scientists, the Court held that Massachusetts faced “climate change risks” associated with rising sea levels which threatened state-owned coastal lands.18 The Court noted that remediation would cost hundreds of millions of dollars.19 As explained below, the Court found these risks to be sufficiently certain and imminent to support standing. 

3.1.B.1.b. Non-economic Interests

Non-economic interests have proven more difficult for the Supreme Court to analyze. Most of the important cases have arisen in the environmental law context.  The Court has recognized that environmental, recreational, and aesthetic injuries are legally cognizable for standing, but has had difficulty in defining the circumstances in which such injuries are sufficiently concrete and imminent to confer standing. Sierra Club v. Morton, for example, arose from a challenge to a decision by the U.S. Department of the Interior to license the construction of a ski resort.20 The Sierra Club claimed that the license agreement was illegal and asserted standing based upon its long-standing interest in, and concern for, the protection of the environment and its experience in environmental litigation. The Sierra Club did not plead that it or its members would suffer any adverse consequence by virtue of the license. Acknowledging that loss of recreational opportunities or aesthetic enjoyment may be cognizable injuries, the Court held that the Sierra Club failed to plead a particular cognizable injury associated with the license, and it therefore lacked standing to sue. On remand to the district court, the Sierra Club amended the complaint to allege that its members would suffer such injuries and ultimately succeeded in blocking the development.21

Sierra Club is significant both for what it permits and what it prohibits. By recognizing that non-economic injury suffices for injury in fact, Sierra Club loosened the requirement of injury in fact. By holding that a specialized interest in a particular issue may not give rise to injury sufficient to challenge unlawful conduct, Sierra Club precluded citizen suits to enforce the law. Subsequent cases expanded these principles.

United States v. Students Challenging Regulatory Agency Procedures (SCRAP) represents the high watermark of environmental standing.22 In SCRAP, the Supreme Court held that a student organization assembled for the purpose of litigation had standing to challenge the Interstate Commerce Commission’s approval of increased rail freight rates that would increase the cost of recycling scrap metal. The students claimed to suffer aesthetic injury when using parks and to suffer injury when breathing polluted air as a result of reduced recycling. Even though the injuries would generally be suffered by virtually everyone and the connection between the challenged policy and the claimed injuries was highly attenuated, the Court found standing. The Court, however, has made it subsequently clear that SCRAP lies at the very margin of standing doctrine, if not beyond.23

The Supreme Court recognized the role of carefully pleading injury in Duke Power Company v. Carolina Environmental Study Group.24 Organizations and individuals who lived close to a planned nuclear power plant challenged the constitutionality of federal legislation capping the potential liability of a plant operator for a nuclear disaster. Plaintiffs alleged that, absent the liability cap, the plant could not profitably be built, thereby tying the harm that would result from construction of the plant to the liability cap. Plaintiffs claimed that use of two local lakes to produce steam and to cool the reactor would release small amounts of non-natural radiation and would cause a “sharp increase” in water temperature, which in turn would harm their interest in the recreational use of the lakes.25 Relying upon Sierra Club and SCRAP, the Court held that the injuries were sufficient to confer standing. The Court also held that the plaintiffs satisfied the causation and redressability requirements for standing, discussed below.

Since Duke Power, the Court has been less receptive to claims of environmental standing. In Lujan v. National Wildlife Federation, for example, the plaintiffs challenged the Interior Department’s efforts to review and classify hundreds of parcels of public lands in a manner that might have resulted in their use for mining.26 Relying on affidavits, plaintiffs claimed injury to their recreational and aesthetic enjoyment of lands in the vicinity of public lands that had been opened to mining and oil and gas leasing claims. The Court rejected standing. The public lands at issue were massive tracts of land, only a small portion of which were subject to the challenged decisions. The Court held that an interest in lands that simply lay in the vicinity of areas subject to development was inadequate to confer standing.

Similarly, Lujan v. Defenders of Wildlife involved a provision in the Endangered Species Act that required federal agencies to consult with the Interior Department to make sure that any programs authorized or funded by the agency do not adversely affect endangered species.27 In Defenders of Wildlife, plaintiff organizations and individuals challenged an Interior Department regulation that had the effect of limiting the consultative scope of the Act only to projects undertaken within the United States rather than abroad as well. Plaintiffs alleged that reducing this consultative arrangement would increase the rate of extinction of endangered species overseas. Again, the Supreme Court recognized that a desire to observe animals was a cognizable interest, but held that plaintiffs failed to demonstrate that they “would thereby be ‘directly’ affected apart from their ‘special interest’ in th[e] subject.”28 Affiants claimed only that they had visited the habitats of endangered species abroad and intended to revisit them. The Court observed that “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.’”29

The Supreme Court’s more recent decision in Friends of the Earth v. Laidlaw Environmental Services involved standing under the citizen-suit provision of the Clean Water Act.30 That provision authorizes the federal courts to hear actions for injunctive relief and civil penalties by “a person or persons having an interest which is or may be adversely affected.”31 Laidlaw received a permit to discharge certain pollutants into a river but repeatedly exceeded those limits. South Carolina sued Laidlaw and quickly settled for $100,000 in civil penalties and a promise to comply with the permit. Friends of the Earth subsequently filed suit, seeking additional civil penalties and injunctive relief. The issue before the Court was whether plaintiffs had standing to seek civil penalties after Laidlaw had complied with the discharge permit.

The Court held that plaintiffs had established injury in fact, Through affidavits and deposition testimony they detailed their desire to recreate on the nearby river and to enjoy its aesthetic beauty, but explained their hesitance to do so because of the pollution.32 Distinguishing National Wildlife Federation and Defenders of Wildlife, the Court held that the affidavits and testimony presented by Friends of the Earth members asserted that Laidlaw's  discharges, and the affiants' reasonable concerns about the effects of those discharges, directly affected those affiants' recreational, aesthetic, and economic interests. The court stated that the submissions presented more than the mere "general averments" and "conclusory allegations" found inadequate in National Wildlife Federation. The Court further found that the affiants' conditional statements -- that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging pollutants into it -- were not like the speculative "'some day" intentions to visit endangered species halfway around the world that we held insufficient to show injury in fact in Defenders of Wildlife."33

Friends of the Earth offers useful guidance to advocates who need to identify potential plaintiffs and plead their injuries in the complaint or in affidavits.  Unlike plaintiffs in National Wildlife Federation, the Friends of the Earth plaintiffs alleged direct injury from the pollutants in question to the particular area in which they wished to recreate.34 Unlike plaintiffs in Defenders of Wildlife, the plaintiffs in Friends of the Earth alleged that they would use the river without the discharges, not that they might someday do so.35 Notwithstanding the Court's opinion in Earth Island Institute, discussed below, Friends of the Earth suggests that the Court remains receptive to finding injury in fact in environmental cases where plaintiffs are able to allege a clear wish to avail themselves of recreational or aesthetic opportunities in a particular, proximate area, but assert that they had not done so because of reasonable concern of harm.

3.1.B.1.c. Injuries to Statutory Rights

Statutory rights can create the cognizable legal interest required for standing, but Defenders of Wildlife seemed to place limits on this general principle. A majority of the Court found the “citizen suit” provision of the Endangered Species Act unconstitutional.36 The Act permitted “any person” to obtain judicial review of agency action that is alleged to violate the Act. The plurality opinion, authored by Justice Scalia, recognized that the Court had frequently held that “[t]he ... injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”37 However, relying on the line of “generalized grievance” cases, Justice Scalia stated that Congress could recognize cognizable injuries by statute but could not dispense with the concrete-injury requirement. Justices Kennedy and Souter joined this holding, forming a majority, on slightly narrower grounds. They noted that “Congress must, at the very least, identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.”38 That was something the citizen-suit provision of the Act failed to do.39

In so holding, the Supreme Court did not purport to overturn a line of cases arising under the Fair Housing Act of 1968.40 In those cases, the Court held that Congress may create by statute a right, the deprivation of which constitutes the injury in fact necessary for standing, even when the plaintiff would have suffered no judicially cognizable injury without the statute. In Trafficante v. Metropolitan Life Insurance Company, cited with apparent approval in Defenders of Wildlife, the Court held that Congress created a right to be free from the effects of racially discriminatory housing practices directed at others.41 Thus, white residents of an apartment complex had standing to challenge the exclusion of black rental applicants because they suffered the loss of the benefits of life in an integrated community.42 Defenders of Wildlife would suggest that such antidiscrimination laws can create new cognizable injuries, but that such statutes can permit only those particularly and concretely suffering such injuries to enforce these laws.43 Indeed, acknowledging contrary authority under the Fair Housing Act, the Supreme Court recently held that the "person aggrieved" right to sue provisions in Title VII is narrower than Article III standing.44   Instead, the Court equated the "person aggrieved" language with the "zone of interest" test found in APA standing jurisprudence.45

3.1.B.1.d. Procedural Injury

The Supreme Court has addressed an additional form of injury—other than economic, recreational, and aesthetic injury—of potential value to legal aid attorneys. In Defenders of Wildlife, plaintiffs sought standing on the ground that the Act in question created a procedural right in the form of interagency consultation that was allegedly violated. The Court rejected the view that anyone could have standing to assert this abstract “procedural right.”46 The Court did, however, note that “‘procedural rights’ are special: the person who has been accorded a procedural right to protect his concrete interest can assert that right without meeting all the normal standards for redressability and immediacy.”47 Plaintiffs have, in short, standing to challenge the alleged violation of procedures so long as the procedures are designed to protect some concrete substantive interest of the plaintiff and that it is "substantively probable" that breach of those procedures will injure those interests.48 Otherwise, the claim of standing is regarded as nothing more than a generalized interest in the government’s compliance with laws.49

The Supreme Court's decision in Massachusetts v. Environmental Protection Agency clearly reinforces, if not expands, this form of standing.50 In that case, Massachusetts challenged the Environmental Protection Agency’s decision not to regulate greenhouse gases pursuant to the Clean Air Act, which expressly authorizes challenges for actions unlawfully withheld. Holding that Massachusetts could advance this challenge without meeting the ordinary standards for redressability and immediacy, the Court held that "when a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant."51  

3.1.B.2. Actual and Imminent Injury

Once a cognizable injury has been asserted, the Supreme Court has long cautioned that the injury in fact be "actual and imminent, not conjectural or hypothetical."52 Our discussion of non-economic injuries above describes the Court's approach to this requirement of standing in several of the earlier cases. A more recent case, Summers v. Earth Island Institute, a closely divided environmental standing decision, follows the logic of Defenders of Wildlife.53  In Earth Island, a number of environmental organizations challenged Forest Service regulations which exempted small timber salvage sale projects from notice, comment and appeal processes set forth in a federal statute. The challenge occurred in the context of one particular sale.  After that specific controversy settled, the challenge proceeded generally against the regulations, but the absence of a particular factual context in which the regulation was applied to a specific timber sale doomed standing. The affiant asserted plans to visit national forests in the future, but he failed to allege an intent to visit a particular tract subject to a sale covered by the regulation. The dissent pointed out that there was a "realistic likelihood" that a member of one of the plaintiff organizations would visit an affected tract because the Forest Service conceded that it would engage in thousands of projects exempt from the regulation in the future. The Court, however, rejected reliance on "probabilistic standing" based on a realistic threat of harm. Instead, it insisted that organizational plaintiffs use member affidavits to show that they will imminently use specific tracts.54  Earth Island presents particular challenges in situations in which there is a settlement in an action filed by a plaintiff to challenge application of a legal rule in a particular context as part of a broader effort to overturn the rule generally.

Although the analysis might well have been more forgiving because of its focus on the standing of state,55 the question of "actual and imminent" harm was squarely presented in Massachusetts v. Environmental Protection Agency.56 In Massachusetts, the state alleged injury to its coastline from Environmental Protection Agency's failure to regulate the greenhouse gasses that contribute to global warming. Based on scientific evidence presented, the Court found support in the plaintiffs' allegations linking greenhouse gasses to global warming, chiding the dissent as being among the only naysayers on this point.57 It also credited an affidavit from a scientist explaining that rising seas had already encroached on the Massachusetts coastline.58 A useful lesson from Massachusetts, made even more clear in Earth Island, is to be prepared for an anticipated motion to dismiss on standing grounds with credible and detailed affidavits that (1) demonstrate the affiant's clear intention to engage in activities, consistent with past practices, that (2) will, if taken, cause the affiant direct and highly probable injury.

A recent example is Monsanto v. Geertson Seed Farms in which conventional alfalfa seed farms and farmers challenged the Department of Agriculture's decision to deregulate a form of genetically modified alfalfa.59 The Court accepted the trial court's conclusion that the decision gave rise to a "significant risk" of contamination to conventional alfalfa crops.60 Citing a declaration of a farmer who stated that he would in the future test his crops to ensure that they were free of genetically modified alfalfa, which imposed costs on his business, the Court held that the farmers' injuries were sufficiently concrete to afford them standing.61

In seeming tension with Monsanto, Clapper v. Amnesty International, squarely addressed the question of future injury and exposed the deep rift in the Court on how to define the degree of certainty required of plaintiffs to establish standing when asserting future injury.62 In Clapper, a group of journalists, attorneys and others challenged as unconstitutional a provision in the amended Foreign Surveillance Intelligence Act which authorized the government to engage in electronic surveillance of their sources and clients overseas. The plaintiffs contended that their sources and clients are the kinds of people likely to be subject to such surveillance and, fearing future surveillance, they had undertaken costly measures, such as foreign travel instead of phone calls or e-mail, to communicate with these individuals, or had limited their electronic contacts to maintain their confidentiality. 

In a 5-4 decision, the majority initially observed that the standing requirement is particularly exacting when the case challenges the constitutionality of actions taken by another branch of the federal government and when the issue relates to intelligence gathering and foreign affairs.63 However, relying on cases outside that context, the Court held that the threatened injury must be "certainly impending."64 It found that plaintiff had not satisfied that formidable standard. The Court regarded the plaintiffs' fear that the government will target their contacts or clients as speculative, citing affidavits that expressly stated that the affiant assumed their communications would be monitored. In context, an allegation of certain surveillance was not possible. Even if the government targeted the communications of those connected to the plaintiffs, the request to do so required review of the Foreign Intelligence Surveillance Court and the Court announced its reluctance "to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment."65 The plaintiffs further contended that their fear of surveillance caused them present injuries when they took measures, including foreign travel, to avoid being overheard. The majority rejected that assertion as nothing more than an effort to "manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending."66 The dissent observed that there was, in reality, a "very high likelihood" that the government would intercept the communications involving the plaintiffs because their clients and contacts were the kinds of people of great concern to the government, the content of the communications would be of interest to the government, they had been previously targeted for surveillance, and the government has the capacity to conduct surveillance of these communications.67 The dissent further challenged the notion that the "certainly impending" standard was the required threshold for standing, citing many cases, including Monsanto, applying a less rigorous probabilistic standard.68

 In a footnote that hedged the standard, the majority acknowledged that “we have found standing based on a ‘substantial risk’ that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm,” but held that, if the “certainly impending” and “substantial risk” standards are different, the plaintiffs did not satisfy the more forgiving “substantial risk” requirement either.69

The Supreme Court’s more recent standing decision in Susan B. Anthony List v. Dreihaus,70 sheds further light on the applicable standard. Susan B. Anthony was a pre-enforcement challenge to an Ohio statute that prohibited “false statements” concerning candidates or public officials during political campaigns for nomination or election. Any person can file a complaint about such statements with a state commission that, in turn, must refer the matter to a county prosecutor if the commission determines by clear and convincing evidence that the false-statement law was violated.

Of relevance here, the Court cited Clapper and held that “[a]n allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.”71   A showing of either standard may therefore be sufficient. In the pre-enforcement context, that standard may be satisfied when the plaintiff expresses an intent to engage in arguably unlawful speech and there is a “credible threat” of enforcement.72   The Court held that standard was satisfied by the combination of burdensome administrative proceedings before the commission combined with the subsequent threat of criminal prosecution because prior speech, likely to be repeated, had previously been found unlawful in a proceeding before the commission mooted by the withdrawal of the claim. 

At least in the context of a pre-enforcement challenge, the Court in Susan B. Anthony appeared to temper  Clapper's "certainly impending" language and leave opportunities to continue to argue the viability of the alternative “substantial risk” formulation.

3.1.B.3. Concrete and Particularized Injury

In Spokeo, Inc. v. Robins,73 the Supreme Court considered the concrete and particularized injury prong of the injury-in-fact test in a case claiming that inaccuracies in the results of a "people search engine" inquiry constituted a violation of the federal Fair Credit Reporting Act. The Court made very clear that "concrete" and "particularized" are two separate and distinct requirements.

A particularized injury "must affect the plaintiff in a personal and individual way."74 In effect, this parallels the concept of "distinct" injury typically used in public law litigation discussed in the following section. A concrete injury must be "real" and not "abstract."75 Again, the notion is similar to that of "palpable" injury discussed below. Intangible injuries may, according to the Spokeo Court, be concrete. While Congress may identify intangible harms it seeks to redress by statute, the fact that Congress creates a statutory right and causes of action to enforce that right does not, alone, mean that the injury-in-fact requirement is met. A "bare procedural violation" is not necessarily enough because it may not cause real harm to the plaintiff.76

3.1.B.4. Distinct and Palpable Injury

One of the goals of public law litigation is to force the government to comply with the Constitution and federal statutes. In the absence of more specific injuries, plaintiffs have claimed that the Constitution confers upon all citizens the right to a lawful government and upon all federal taxpayers the right not to be taxed to support unlawful governmental activity. In a largely unbroken line of cases, the Supreme Court has refused to permit litigation of these so-called citizen or taxpayer suits.77

In United States v. Richardson78 and Schlesinger v. Reservists Committee to Stop the War79 , the Court held that injury resulting from the allegedly unlawful expenditure of tax monies did not confer standing because of the “‘comparatively minute, remote, fluctuating and uncertain’ impact on the taxpayer.”80 With respect to the interest of citizens in lawful government, the Court repeatedly characterized the injury to plaintiffs as citizens as “remote,” “abstract,” “generalized,” and “undifferentiated,” rather than “concrete.” Because of this, the Court has held that this “motivation [to enforce the Constitution] is not a substitute for the actual injury” required for standing.81 Clapper reiterated the Court's long-standing rejection of the notion that standing doctrine should be applied to permit some plaintiff standing for fear that the law or practice could go otherwise unchallenged.82

The Court expounded on these principles in Warth v. Seldin, where the Court coined the phrase “distinct and palpable injury” to capture the requirement that plaintiffs must plead more than a generalized or undifferentiated grievance against the government.83 “Distinct” generally means that the challenged act or policy affects the plaintiff differently from citizens at large. “Palpable” means that the resulting injury is concrete and not abstract or hypothetical. The Court explained in Warth that the prohibition against citizen standing and taxpayer standing did not derive from Article III. Rather, the requirements that a plaintiff suffer a distinct and palpable injury are “essentially matters of judicial self-governance.”84 Thus, while the requirement of injury in fact is rooted in Article III, the requirement that the injury be distinct and palpable is a prudential limitation on standing created to effectuate the separation of powers. Because the requirement is prudential, Congress can dispense with it.85

Allen v. Wright culminated the demise of both citizen standing and taxpayer standing.86 Parents of African American public school children, residing in school districts undergoing desegregation, challenged the Internal Revenue Service’s failure to deny tax-exempt status to discriminatory private schools in their respective districts. Plaintiffs did not allege that their children wished to attend these private schools. Rather, the parents alleged that governmental financial assistance to discriminatory schools both harmed them and impaired their ability to have the public schools desegregated. Treating the claim as an abstract allegation that the government stigmatized African American citizens by subsidizing race discrimination, the Court held that the claim did not state a distinct and palpable injury.87 The Court found that stigmatic injury “accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.”88

The Supreme Court returned to the topic of generalized grievances in Hollingsworth v. Perry, the case challenging California's Proposition 8 banning gay marriage on due process and equal protection grounds.89 In Hollingsworth, the state defendants refused to defend the constitutionality of Proposition 8, and the official sponsors of the successful voter initiative sought to intervene to defend it. The Supreme Court held that they lacked standing to do so because they had no direct stake in the outcome of the case. Once the initiative passed, the Court reasoned, the proponents had the same generalized interest in its legality as any other citizen of California.90

Nonetheless, the Court has sometimes found standing based upon claims of injury that can be described only as generalized or abstract. In Federal Election Commission v. Akins, for example, voters challenged a decision by the Federal Election Commission that a particular organization was not a “political committee.”91 Political committees must make certain disclosures to the Commission; those disclosures, in turn, may be made public. The Court found that plaintiff voters had standing because the voters were not afforded access to information that might assist them in casting their vote, even though all voters could have claimed the same thing.92 Akins might be justified on the grounds that the right of information at issue was statutorily created and that a statute gave “aggrieved” parties a right to challenge the FEC decision. That would put Akins closer to Trafficante than Defenders of Wildlife, discussed above.

3.1.B.5. Injury Fairly Traceable to the Challenged Conduct

In addition to alleging injury in fact, the plaintiff must demonstrate that the injury is fairly traceable to the defendant’s unlawful conduct. In cases in which the government acts against the plaintiff, causation is simple. When, however, governmental action or inaction relates to third parties or only indirectly affects the plaintiff, the question becomes whether the causal connection between action and injury is sufficient to confer standing. The Supreme Court has found standing in some cases notwithstanding an attenuated or uncertain chain of causation.93 At the same time, the Court has denied standing in cases in which the chain seemed both shorter and more certain.94 The Court’s standing causation jurisprudence has been markedly inconsistent and offers few lessons for general application.

The Court first articulated the requirements of causation and redressability in Linda R.S. v. Richard D.95 Plaintiff, an unmarried mother, sued to compel a local prosecutor to enforce the state’s criminal nonsupport statute against the father of her child. She asserted that her injury was the refusal of the child’s father to provide support and claimed that the state’s refusal to enforce the statute against unmarried fathers violated the Equal Protection Clause. The Court held that the mother lacked standing because she did not show that enforcement or threat of enforcement of the statute would cause the father to make child support payments.”96 There was, in short, an insufficient showing that the state’s enforcement policy was the cause of her injury: the non-receipt of child support.

In Warth, low-income plaintiffs who wished to reside in Penfield, New York, challenged zoning restrictions that effectively precluded the construction of low and moderate-income housing within the city. The Court held that the individual plaintiffs lacked standing because they failed to “allege facts from which it reasonably could be inferred that, absent the [city’s] restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield.”97 The ability to purchase a home in Penfield turned on both the willingness of the developer to build homes there without the restrictions and the plaintiffs’ financial capability to do so. Both were regarded as too speculative. Because the plaintiffs failed to establish that city zoning practices caused their injury, they were not allowed to challenge those practices.

By contrast, the Court later held in Village of Arlington Heights v. Metropolitan Housing Development Corporation that a developer of low-income housing and one of its putative tenants had standing to challenge exclusionary zoning practices.98 The developer had contracted to buy property contingent upon its rezoning for multiple family use and filed a properly documented application. When the city denied the application, the developer sued. Although financing for the project was uncertain, the Court held that the developer had standing to challenge the city’s action because an injunction would remove a barrier to development.99 The individual plaintiff alleged that he would seek and qualify for housing in the proposed development in order to move closer to his job. Finding that the city’s action frustrated the individual plaintiff’s specific plan and that an injunction would create at least a “substantial probability” of development, the Court concluded that he too had standing.100

Plaintiffs in Arlington Heights overcame standing problems by paying attention to detail. Rather than mount an abstract challenge to exclusionary zoning practices on behalf of developers who hoped to develop at some future time and tenants who hoped to rent somewhere, they identified a developer and an individual with specific injuries more closely traceable to city action. Because they pled a commitment to act if relief were granted, these plaintiffs also established a greater likelihood of redressability. By recognizing from the outset the importance of establishing that exclusionary zoning caused the inability to develop or to rent, they overcame the Warth obstacle. Arlington Heights represents a wise response to Warth: to identify with precision the injury and to demonstrate the link between the injury and official action.101

Simon v. Eastern Kentucky Welfare Rights Organization, in contrast, demonstrates the hazards of filing a suit without giving due regard to standing.102 a>/ In that case, various individuals and organizations challenged an Internal Revenue Ruling which permitted some hospitals to deny admission to non-emergency indigent patients without jeopardizing their tax-exempt status. Plaintiffs each claimed to have been denied hospital treatment because of their indigence and asserted that the revised revenue ruling “encouraged” and “was encouraging” the continued denial of treatment. Plaintiffs pled that each of the hospitals was tax-exempt and received substantial private contributions.

The Court held that the plaintiffs failed to establish that the denial of treatment was fairly traceable to the revised revenue ruling. The Court reasoned that, in the absence of such evidence, “[i]t is purely speculative whether the denials of service . . . fairly can be traced to [Internal Revenue Service's] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.”103 Eastern Kentucky Welfare Rights Organization presented a particular challenge to the plaintiffs because they needed establish a causal relationship between a policy and the actions of a third party. Causation is much easier to show when it turns on the plaintiffs' own actions or decisions not to act. Friends of the Earth is a good example. The Court did not require the plaintiffs to demonstrate that particular discharges into a river had caused them injury or increased their risk of injury. Rather, the Court found it sufficient that the discharges generally created “reasonable concerns” about their effects and that these concerns directly and reasonably affected plaintiffs’ recreational and aesthetic interests when plaintiffs chose not to use the river.104  

The Court's recent decision  in Massachusetts v. Environmental Protection Agency involved a somewhat different concept of causation.105  There, the Environmental Protection Agency conceded a causal link between greenhouse gasses and global warning, but argued that Environmental Protection Agency’s failure to regulate new car emissions contributed very little to the asserted injuries and that regulation would not help global warming because of greenhouse gas emissions from other countries.  The Court held that causation is present even if there is a tentative or incremental link between the challenged action (or inaction) and asserted injury.106  The earlier cases measured causation in terms of the degree to which the link between conduct and injury was clear or certain.  In a sense, causation was clear and certain in Massachusetts; the issue was, instead, the extent to which the link must be quantitatively significant.  On that point, the Court was rather forgiving, although it suggested that a more relaxed standard was in order when a state is the plaintiff.

3.1.B.6. Relief  Sought to Redress Injury

A corollary to the Supreme Court’s requirement for standing that the injury alleged be fairly traceable to the challenged conduct is the separate requirement that the relief sought must redress the injury. In the great majority of cases the inquiry into causation and redressability are indistinguishable. Thus, in Warth the Court held that there was no reason to suppose that the elimination of exclusionary zoning would enable the plaintiffs to obtain housing in Penfield. In Eastern Kentucky Welfare Rights Organization, the Court held that there was no reason to think that revoking the IRS Revenue Ruling at issue would assure that the next ill or injured poor person would be admitted to a hospital. Furthermore, in Allen, the Court held it was entirely speculative that revoking tax-exempt status for allegedly discriminatory private schools would serve to foster public school integration. What is peculiar about the Court’s concern for redressability is the elevation of the question of remedial efficacy to constitutional status.

While the scope of equitable relief to redress unlawful governmental action has long been a matter of controversy, not until City of Los Angeles v. Lyons did the Court clearly articulate the requirement of remedial efficacy as a constitutional component of standing.107 The plaintiff in Lyons sought damages and injunctive relief after being choked by city police officers. He alleged that the city permitted the police department to use unnecessary choke holds indiscriminately. The Court conceded that Lyons had standing to sue for damages.108 However, the Court held that he lacked standing to seek injunctive relief. An injunction would not redress his injury because it was unlikely that he would be arrested and choked again. 

Lyons differs dramatically from Warth and Eastern Kentucky Welfare Rights Organization. In the earlier cases, the Court’s concern for remedial efficacy was a corollary to the requirement that the plaintiff establish that the injury was fairly traceable to defendant’s unlawful conduct. If the causal link between the defendant’s conduct and the plaintiff’s injury was tenuous, then it followed that injunctive relief against that conduct was unlikely to remedy the injury. Thus, the requirement of remedial efficacy grew out of the focus upon causation; whenever causation was in doubt, so too was remedial efficacy.

The notion of uncertainty in redressability arose in a different context in Defenders of Wildlife. In that case, plaintiffs challenged a regulation that did not require funding agencies to consult with the government before granting funds to projects that might harm endangered species. The Court found that plaintiffs had not demonstrated redressability because the funding agencies were not otherwise bound by any consultation requirement and because the funding agencies supplied only a small percentage of the financing for certain projects.109 Even if those funds were withdrawn, the plaintiffs did not show that the project would be suspended or cause less harm to the endangered species, a showing that would be formidable, if not impossible.

The ability of prospective injunctive relief to remedy past wrongs dealt with in Lyons has echoes in Steel Company v. Citizens for a Better Environment.110 In Steel Company, plaintiff sued a manufacturing firm for past violations of a federal statute requiring users of certain toxic and hazardous chemicals to file forms with the Environmental Protection Agency that detail the name, quantity, and disposal methods of various chemicals. The Environmental Protection Agency alerted the firm that it had failed to file the forms for several years. The firm then did so. Suing the firm for violating the statute, the plaintiff asserted that the company’s failure to file these forms precluded the plaintiff from learning about its operations. The plaintiff sought declaratory and injunctive relief and civil penalties.

The Court found that the plaintiff failed the redressability prong of the standing test. With respect to injunctive relief, the plaintiff sought an order permitting it to inspect the firm’s facilities and records and requiring the firm to submit future forms to the Environmental Protection Agency. The Court held that such relief would not redress the injury previously caused when the firm failed to file the forms. The plaintiff did not allege that such a violation was going to happen again, and, without it, there was no basis for prospective injunctive relief.

In contrast, the Court’s approach to redressability in Massachusetts v. Environmental Protection Agency was somewhat more forgiving.111  There, the Court emphasized that the relief requested need not remedy the entire injury suffered by the plaintiff; regulation of greenhouse gas emissions from new cars will not solve the global warming problem.112  The Court, though, seized on Environmental Protection Agency statements underscoring the need to address the problem, including voluntary measures. These statements suggested Environmental Protection Agency’s recognition that some regulation must offer some prospect for at least slowing global warming. Holding that the redressability prong can be satisfied even if relief only promises modest reductions in remote risk, the Court held that:

In sum —at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.113

The clear message of Lyons and Steel Company is to choose plaintiffs with care and, whenever possible, to choose plaintiffs who have suffered recurrent application of the practice or policy at issue. In preparing a claim seeking injunctive relief based upon past conduct, the attorney must therefore articulate in the complaint the reasons why the risk of recurrence is more than speculative.  When the acts or omissions promise to continue into the future, the less demanding perspective of Massachusetts offers potentially valuable support for creative redressability arguments.114  

R econciling these standing cases is not realistically possible. However, the Court seems far more likely to find standing in cases brought pursuant to a specific federal statute which reflected Congress' intent and desire for judicial intervention.115 Such statutes evidence a legislative judgment that certain classes of plaintiffs suffer injury in fact when the statute is violated, that the violation causes the injury, and that such injury is redressable by the statutory remedies provided. These statutes also explicitly reflect Congress’ desire that courts intervene to resolve disputes arising from the statutes. As the Court recently put it, “Congress [can] define new legal rights, which in turn will confer standing to vindicate an injury caused to the claimant.”116 With the exception of Defenders of Wildlife, the Court found standing in each case arising from such statutes. When, however, the action does not arise from such statutes and there is no explicit legislative mandate for intervention, the Court takes a much narrower view of standing. This is particularly true in cases, often involving constitutional questions, that pose challenges to the judicial function when standards of decision are not readily available or discernible117 and when separation of powers issues are present.118

3.1.C. Associational Standing

Groups may have standing in a representative capacity, in an individual capacity, or in both. A group has standing in a representative capacity when it represents the rights of its members. Such standing is an exception to the general prohibition on third-party standing. An association has standing in an individual capacity (or qua group) when it asserts its own rights as an organization.

3.1.C.1. Representative Capacity

The leading case articulating the standing requirements for groups that sue in a representative capacity is Hunt v. Washington Apple Advertising Commission.119 The Court stated in Hunt:

Thus we have recognized that an association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.120

The first prong of the Hunt test establishes a traditional standing inquiry grounded in Article III’s case or controversy requirement. The second prong is also constitutionally based and is designed to ensure that the association has both a concrete stake in the outcome of the litigation and will approach it with adversarial vigor. In contrast, the Supreme Court has ruled that the third prong is a prudential limitation in the same sense as third-party standing discussed below.121

With respect to the first element, when an organization asserts standing in a representative capacity, Hunt does not require the organization to allege that it has suffered any injury. Rather, the organization must establish that those whom it represents have suffered an injury sufficient to confer standing.122 The organization need not establish that a substantial number of its members have suffered injury. Injury to a single member will do.123 However, that member must be specifically identified.  In Earth Island Institute, the Supreme Court rejected the sufficiency for standing purposes of an assertion that some members of a large membership organization probably will experience harm.124 Instead, submit affidavits from specific members directly affected by the challenged conduct.

An issue commonly litigated relating to the first prong is whether the plaintiff is the sort of association entitled to avail itself of associational standing. Voluntary membership organizations, such as trade organizations, plainly qualify.125 Organizations whose members are compelled to join, such as some trade unions and bar associations, may qualify as well.126 Matters become more difficult when the association is not a traditional membership organization. The association may have standing if the association is “the functional equivalent of a traditional membership organization.”127 That is, if the individuals in the organization select its leaders, guide its activities, and finance its efforts, the association may have standing.128 If not, the association lacks standing.129

Second, Hunt also requires some community of interest between the group and the injured member. By requiring the interests that the suit seeks to protect to be germane to the organization’s purpose, Hunt limits the capacity of groups to define their purpose in terms sufficiently broad to permit the group to represent whoever’s interests happen to suit it at a given moment.130 This requirement has been described as “undemanding.”131

Third, Hunt permits representative standing only when neither the claim nor the relief sought require the participation of an injured individual. This element is typically satisfied when the plaintiff association seeks injunctive or declaratory relief generally benefiting the association and its members,132 even when there is a need for some limited participation of association members in fact discovery or at trial.133 The application of the third prong in cases with a conflict among an association’s membership resulted in an interesting split in the circuits.134 Unless Congress eliminates the third element of the Hunt test by statutorily authorizing suit for damages,135 associational claims for damages run afoul of this third prong because the claims require individualized proof of damage and representative standing is therefore inappropriate.136 Because Hunt vests trial courts with some discretion in resolving claims of associational standing, the better practice when group standing appears tenuous is to join at least one named individual as plaintiff in litigation brought by a group asserting associational standing. The presence of an individual with standing should discourage the court—and opposing counsel—from delving deeply into the question of the group’s associational standing.

3.1.C.2. Advantages and Disadvantages of Associational Standing

Given that a group asserting representative standing will fare no better than its individual members in establishing the requisite injury, one can fairly ask why associational standing is worth pursuing. The principal advantage of group standing lies in its use to obtain the benefits of a class action without the bother of class certification. Those benefits include the opportunity to obtain a judgment in favor of everyone adversely affected and to avoid mootness.

Including a representative organization as a plaintiff may justify broader relief than would otherwise be available in a single plaintiff action. It also may avoid mootness of questions tied to the passing stake in the controversy of individual members. Representative claims thereby effectively shift the case and controversy focus from whether a particular individual has a live claim to whether any group member has a live claim. In this sense, representative standing resembles a class action without the problems posed by the requirement of class certification.

Indeed, the Supreme Court recognized the propriety of representative group standing as an appropriate alternative to class action litigation for injunctive relief in International Union, United Automobile, Aerospace and Agricultural Implement Workers.137 In that case, the government argued that the Court should modify Hunt to require representative groups to proceed under Rule 23. Rejecting that argument, the Court reaffirmed Hunt. Representative groups, the Court held, may be superior to an “ad hoc union of injured plaintiffs” proceeding as a class action.138 Because associations are often borne of a desire to vindicate common interests, they are likely to be adequate representatives of their members and “can draw upon a preexisting reservoir of expertise and capital.”139 The Court’s reaffirmation of associational standing suggests the potential value of such standing as an alternative to the vagaries of class certification.

Representative group standing also may enable an individual member who does not wish to appear as a named plaintiff, or does not have the resources to do so, to avoid direct participation in the lawsuit. For a variety of reasons, some individuals are reluctant to sue in their own name. However, their membership in a group can confer representative standing on the group. On the other hand, damages are not available in cases involving associational standing.

An organization may also see representative group standing as a device to strengthen the organization within a community.140 By appearing as the lead plaintiff in a major lawsuit, the group acquires visibility; when it wins, it acquires clout. While these considerations may appear irrelevant to the development of a successful lawsuit, they may matter greatly to a fledgling organization.

3.1.C.3. Organizational Standing

An organization that suffers injury in its own right—rather than, or in addition to, an injury to the rights of its members—has individual standing as a group.141 When the group asserts an injury to its own interests, the group has standing qua group, irrespective of any injury to members.142 Thus, a group that suffers or will suffer economic harm,143 or diminution in membership attributable to unlawful conduct, has an individual injury sufficient to confer standing.144 So would an organization claiming that an agency violated its statutory right to information.145 However, the facts relating to this harm are subject to discovery.146 Prior to litigation, prospective organizational plaintiffs should be advised to keep careful records of membership loss or diversion of resources.147

Only in limited circumstances, absent economic harm or diminution in membership, do courts uphold the assertion of standing for groups that suffer an injury to their organizational goals.148 While Havens Realty and Arlington Heights, discussed above, expand marginally the opportunity for an organization to establish individual standing based upon injury to its non-economic agenda, they do not undermine Sierra Club, Schlesinger and Allen v. Wright, all of which prohibit standing based upon a general injury to a group’s ideological interests.149 Thus, group standing deriving from injury to the group’s non-economic interests offers only limited possibilities for litigation.

In structuring a claim by a group suing qua group, every effort should be made to identify and plead some kind of economic harm, frustration of a core interest, or membership loss flowing from the challenged conduct. Because combining individual group standing with associational group standing increases the likelihood of success in establishing standing, a group asserting injury to its own interests should, whenever possible, also plead representative standing.

3.1.D. Prudential Limitations on Standing

As a matter of judicial self-governance, the Court has also held that prudential considerations counsel against standing even in cases in which the Article III case or controversy requirement has been satisfied. These considerations are motivated by the Court’s reluctance to decide matters of national significance that it regards as being more appropriately resolved by other branches of government and unlikely to protect the interests presented.150 The Court has identified three prudential doctrines: (1) the limitation on taxpayer or generalized grievance standing, discussed above, (2) the zone of interests test and (3) limitations on third-party standing.

3.1.D.1. The Zone-of-Interests Test

Beginning in Association of Data Processing Service Organizations Incorporated v. Camp151 , the Court has required that plaintiffs establish that their grievance “must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.”152 This prudential limitation on standing is “founded in concern about the proper—and properly limited—role of the courts in a democratic society.”153 The limitation may be set aside by Congress.154 The zone-of-interests test originally arose from an interpretation of the standing provision in the Administrative Procedure Act.155 The Court, however, has expanded it to apply to any provision of law.156

In Block v. Community Nutrition Institute, the Court suggested a liberal standard for applying the zone-of-interests test.157 A plaintiff fails the test when there is express legislative intent to preclude review.158 The presumption is in favor of judicial review, which may be overcome only by clear and convincing evidence found in the legislative scheme.159 Subsequently, the Court expressly stated that the zone-of-interest test “is not meant to be especially demanding,” precluding standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be assumed that Congress intended to permit the suit.”160

The Court has more recently continued to adhere to a relaxed interpretation of the zone-of-interests test. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchuk, the Court found that a neighboring property owner, concerned about the use of land purchased by the government for a tribe which intended it for gaming purposes, fell within the zone of interests of the statute authorizing the purchase because the eventual use of the land is to be considered in making the purchase.161 In National Credit Union Administration v. First National Bank and Trust Company, the Court allowed a competing bank to challenge an order which was issued by the National Credit Union Administration and enlarged the charter of a credit union.162 The Court reasoned that the underlying Act’s purpose was to limit the scope of memberships in credit unions—an interest shared by competing banks. Nonetheless, the Court has applied the test to deny standing. In Air Courier Conference v. American Postal Workers Union, the Court held that the postal worker’s union did not have standing to challenge the suspension of the monopoly over extremely urgent letters under the Postal Express Statutes, noting that those statutes were not intended to protect jobs.163

3.1.D.2. Third Party Standing

Third-party standing issues arise when a party seeks relief by asserting the rights of third parties not before the court. Generally, parties may seek only to vindicate their own legal rights rather than those of others.164 The presumption against third-party or jus tertii standing rests on prudential principles rather than an application of Article III limitations on standing.165 Those prudential limitations, in turn, are grounded upon concerns that third parties may not wish to have their rights asserted, that parties are less likely to advocate vigorously the rights of others, and that the quality of judicial decision making may suffer when concrete evidence of harm is not presented by those suffering it.166 The Supreme Court has generally permitted third-party standing in cases when enforcement of the challenged law or conduct affects third parties indirectly, but has been somewhat less willing to sanction use of third-party standing in other contexts.167

The Court developed a three-part test, each prong of which must be satisfied in order to bring third-party claims: “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relationship to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests.”168 As this test has been applied, however, the Court has found standing even in cases in which the second or third prong has not been clearly established.

The first prong of the test has been rigorously enforced. The plaintiff must satisfy traditional constitutional standing requirements; the challenged law or conduct must injure the party in order for that party to assert the rights or interests of third parties. These requirements have been found to be satisfied when, for example, the plaintiff challenges laws that cause it economic harm,169 or a criminal defendant challenges jury selection procedures.170

With respect to the second prong, the Supreme Court has not articulated specific standards for the degree of the closeness of the relationship between the plaintiff and the third party whose rights are asserted, or the nature of the relationship which satisfies this criterion. Nonetheless, a number of cases offer significant guidance.

In Singleton v. Wulff, a leading case in this area, the Supreme Court held that a physician had standing to assert the rights of patients in challenging a state statute limiting Medicaid-covered abortions. The Court noted the close relationship between doctor and patient and stated that the relationship was directly implicated by the law challenged. Similarly, the Court permitted an attorney to challenge a statute limiting the ability to recover attorney fees in black lung benefit cases on the ground that the statute violated his client’s due process right to legal representation.171 In so doing, the Court observed that third-party standing was appropriate in cases in which the limitation or restriction challenged by the plaintiff prevented the third party from establishing a lawful relationship with the plaintiff.172

This notion explains a number of cases in which the Court held that suppliers of products may challenge restrictions on sales by asserting the rights of customers to obtain the product. In Craig v. Boren, for example, a seller of beer was permitted to challenge on equal protection grounds an Oklahoma law that prohibited sales of 3.2 percent beer to men under 21, while allowing the sale to women aged 18 to 21.173 While the relationship between a tavern and customers seems more tenuous than that between a doctor and patient or an attorney and client, the Court justified its holding on the ground that the seller “is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.”174 Similarly, the Court has permitted booksellers to assert the First Amendment rights of book buyers175 and sellers of contraceptives to assert the privacy rights of customers.176

With respect to the third prong of the test, the Supreme Court frequently permits third-party standing when the third party is unlikely to assert its own interests. Most recently, the Court permitted third-party standing in jury selection cases. In Powers v. Ohio, a white criminal defendant appealed his conviction on the ground that the prosecutor’s use of peremptory challenges violated the equal protection rights of prospective African American jurors.177 The Court first found that discriminatory use of peremptory challenges caused the defendant injury in fact, regardless of race, because such use called into question the fairness of the trial.178 Second, the Court held that the connection between the defendant and excluded jurors was “as close as, if not closer than” those in cases such as Triplett because “[v]oir dire permits a party to establish a relation, if not a bond of trust, with the jurors.”179 Somewhat more convincingly, the Court further noted that the defendant was likely to advocate vigorously on behalf of the excluded jurors in order to secure a reversal of his conviction.180 The Court held that excluded jurors were unlikely to challenge their exclusion since the costs were high and potential benefits low, but that, even if they did, they would be unable to obtain declaratory or injunctive relief.181 The Powers rationale has been extended to civil cases182 and challenges to the selection of grand jurors.183

The question of barriers to third parties enforcing their own rights has also featured prominently in cases involving unlawful racial covenants and the distribution of contraceptives. In Barrows v. Jackson, for example, whites who sued for violating racially restrictive covenants in their deeds were permitted to assert the equal protection rights of African Americans, who could not sue as they were not parties to the covenant.184 In Eisenstadt v. Baird, a doctor who was prosecuted for distributing contraceptives to unmarried persons was permitted to assert the rights of such persons.185 Such persons were not subject to prosecution and were thereby “denied a forum in which to assert their own rights.”186

At the same time, one can imagine scenarios in which young males interested in buying 3.2 percent beer, Medicaid beneficiaries, individuals wishing to obtain contraceptives, and African Americans seeking to purchase property encumbered by a racially restrictive covenant could assert their rights in litigation that they would initiate. This suggests a reasonably relaxed approach to the third prong of the test. However, this may be more reflective of the Court’s more generally forgiving approach to standing in the 1970s. The more recent cases in the jury selection area did not raise significant third-prong problems. However, the Court’s most recent third-party standing case struck a more cautionary note, focusing more on legal barriers to third-parties bringing claims than their likelihood of success in doing so. In Kowalski v. Tesmer, the Court held that pro se criminal defendants who plead guilty were not hindered in challenging a state statute forbidding the appointment of appellate counsel.187

At least two justices have suggested that the Supreme Court revisit and clarify the law of third-party standing. In Miller v. Albright, a woman born abroad and out of wedlock to an American father and a foreign mother challenged, along with her father, a provision in the Immigration and Nationality Act that created different citizenship requirements for those born abroad of an alien father and American mother as opposed to those born abroad to an alien mother and American father.188 The lawsuit asserted that the father’s equal protection rights were violated. Nonetheless, the district court dismissed the father’s claim for lack of standing. The father did not appeal.

Citing only Craig, the plurality opinion written by Justice Stevens and joined by Chief Justice Rehnquist held that third-party standing was appropriate. Addressing the issue in more detail, Justice Breyer, on behalf of Justices Souter and Ginsburg, who dissented on other grounds, agreed. Justice O’Connor, joined by Justice Kennedy, would have denied third-party standing on the ground that the father did not face sufficient barriers to asserting his own rights. Justices Scalia and Thomas expressed agreement with Justice O’Connor but cited Craig to suggest that the third prong of the test was not especially demanding. Justice Scalia concluded that “[o]ur law on this subject is in need of what may charitably be called clarification.”189

The most sensible approach to litigation in the face of uncertainty is to avoid third-party standing problems by joining appropriate additional plaintiffs. Creating a complex and unnecessary obstacle to the assertion of a claim by attempting to have one plaintiff assert the rights of others makes no sense. Simply join representative individuals whose rights are at issue as named plaintiffs.

Third-party standing rules are more clearly developed in the context of overbreadth claims. The prototypical overbreadth claim arises when regulation of activity protected by the First Amendment is challenged on the ground that the regulation sweeps substantial protected as well as unprotected conduct or expression within its prohibition. When plaintiff is engaging in expression clearly subject to permissible regulation under a properly drawn restraint, the overbreadth challenge raises third-party standing issues.

The leading case is Secretary of State of Maryland v. Joseph H. Munson Company190 The Court held that a plaintiff invoking third-party standing in an overbreadth case must establish only that he had suffered injury in fact and that he would adequately frame the issues.191 To demonstrate injury in fact in an overbreadth case, the plaintiff must demonstrate “a genuine threat of enforcement” of the statute against his future activities.192 Underlying the special third-party standing rule for overbreadth cases is the risk that the absent party whose rights are at issue may refrain from the protected activity rather than sue to vindicate First Amendment rights. Should that happen, society loses the views of those who are silenced.

Updated 2017 by Jeffrey S. Gutman