I offer a quite modest contribution to debates on state standing. I do not offer “right answers.” Rather, I posit that it is useful to understand the “stakes” of state standing. By “stakes,” I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting the ability of states to initiate a matter in federal courts. Why, that is, does state standing matter? An inquiry into stakes can usefully proceed stepwise. A first task is to identify the subset of state standing cases that presently elicit division among the Justices. A second task is to articulate the interesting normative consequences of narrowing or widening the Article III gauge in this contested class. Parts I and II attend respectively to these tasks.
In particular, I aim here to flesh out the multifarious character of downstream consequences plausibly related to state standing doctrine. For example, it is already a familiar claim in litigation over this Article III question that a denial of state standing will lead to an issue’s nonjusticiability. My analysis suggests we should be a bit skeptical of that notion. This skepticism, in turn, helps decenter what has become a modal concern in state standing debates. Instead, it suggests the value of attending to other, less familiar institutional design implications, such as effects on the structural Constitution and the incentives of state officials. In the end, I suggest that the latter may well be more important than any other concern.
My conclusion then draws back from the specifics of state standing to develop some more general reflections on the contents and aims of federal courts scholarship in an era of obvious and powerful partisan and ideological polarization. Put crudely, the animating worry there is whether the deepingly polarizing of American society, which the Court cannot escape, alters the way that scholars—putatively above the partisan fray—should talk about and think about the law of federal jurisdiction.
Aziz Z. Huq,
State Standing's Uncertain Stakes,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss5/10