This Article advances a provocative and ironic thesis concerning the incentives of the Roberts Court respecting standing doctrine, which results from the Court's increasingly stable center of ideological gravity and the alignment of that ideology with the overwhelming majority of United States Courts of Appeals. With additional core conservative appointments, the Court will be motivated to broaden standing doctrine as did the Warren Court, the very Court whose historical legacy it seeks to counteract, as a means of working in combination with the lower federal judiciary to move doctrine in its preferred doctrinal direction. To support this thesis, this Article develops and presents two new sets of data. Adapting the Martin-Quinn scoring system, the first data set tracks the ideological center of gravity and the stability of dominant coalition structures on the Supreme Court itself from 1937 through 2005. The second data set is the product of original research drawn from the Federal Judges Biographical Database, compiled by the Federal Judicial Center. These data track the ideological balance of the federal circuit courts, for each year from 1933 through 2006 based upon the party of appointing President. This Article transforms these two sets of data into a readily comparable form and presents them together in a chronological table covering the Supreme Court and the circuit courts from 1933 through 2006. This Article relies upon these data to explain the conditions under which the Supreme Court has historically developed and transformed its principal doctrinal gatekeeper, namely standing, in an effort to control developing constitutional doctrine in concert with the lower federal courts. The Article then places the Roberts Court in a broader theoretical and empirical perspective that tracks the Court's internal coalition structures and accounts for the historical relationship between ideological dominance on the Supreme Court and the majority of the federal circuit courts. The analysis helps not only in assessing the significance of the recent appointments of John Roberts as Chief Justice and Samuel Alito as Associate Justice, but also of potential future appointments in effecting doctrinal change. Reprinted by permission of the publisher.
Maxwell L. Stearns,
Standing at the Crossroads: The Roberts Court in Historical Perspective,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol83/iss3/1