Document Type
Essay
Abstract
This Note argues that not only is standing fascinating and contested, but it is so important that the Court should reconsider standing doctrine in appropriate future cases. While the TransUnion case came and went without much kerfuffle outside of legal circles, standing does not find itself sailing smoothly. As noted, perhaps the Court’s most reliable originalist just dissented from a case that largely restates the current law on standing. And Justice Kagan, perhaps the Court’s most influential liberal, wrote that after TransUnion, standing jurisprudence “needs a rewrite.” Given the current makeup of the Court, any reconsideration of standing doctrine might, as a practical matter, require convincing one or more additional originalist Justices. But even among originalists, accounts of standing do not sail smoothly: there are at least two seemingly different originalist approaches. Thus, this Note attempts to probe the differences between the available originalist accounts of standing and offer a way forward.
Part I lays out the law of standing and necessary background. Part II first summarizes the saga of Justice Thomas’s and Judge Kevin Newsom’s separate writings on standing and then explores each opinion’s method and sources. Part III attempts to parse and resolve the differences between each judge’s originalist approach to standing. That Part also concludes that, perhaps out of respect for precedent and for practical reasons, Justice Thomas holds back from matching Judge Newsom’s comparatively aggressive style—and that despite differing styles as well as a “location” disagreement, the two judges’ approaches would require overturning the same cases. Part IV briefly explores implications and suggests that while Judge Newsom gets the law right, if the Court gets the chance to overturn TransUnion, it should employ Justice Thomas’s more targeted style.
Recommended Citation
Julian Gregorio,
Essay,
What's Originalism After TransUnion?: Picking an Originalist Approach That Gets Standing Back on Track,
98
Notre Dame L. Rev. Reflection
172
(2023).
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol98/iss3/3