Abstract

In 2007, The New York Times reported "limiting the ability of plaintiffs to bring or appeal lawsuits" had emerged as an early "theme" of the Roberts Court. The Wall Street Journal concurred, reporting "the biggest change under Chief Justice Roberts might not involve who wins on the merits" but "who gets through the courthouse door in the first place." An early consensus is emerging... that one effect of the Roberts Court is to make it more difficult for prospective plaintiffs to have their day in federal court.

Because standing decisions are more insulated from legislative revision than other sorts of "access to justice" cases, focusing on the Roberts Court's approach to standing may allow us to refine our assessment of the Roberts Court. Specifically, it may illuminate whether the underlying "theme" of the Court's work in this area is limiting access to the federal courts, or something else.

This Article offers a preliminary look at the standing jurisprudence of the Roberts Court. This is obviously a work in progress, as the Roberts Court presents an evolving subject of study. At this point, however, the Roberts Court has yet to tighten the requirements of Article III standing. To the contrary, insofar as the Roberts Court has altered the law of standing, it has made it easier for at least some litigants to pursue their claims in federal court. The Court's decisions denying standing have largely reaffirmed prior holdings, warts and all. By comparison, some of the Court's decisions on standing, most notably Massachusetts v. EPA and, to a lesser extent, Sprint Communications Co. v. APCC Services Inc., have lowered the standing bar, perhaps quite significantly. Whatever else has transpired with regard to citizen "access to federal courts" in the first four years of the Roberts Court, standing for citizens to invoke the jurisdiction of federal courts remains in place.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

Summer 2009

Publication Information

59 Case Western Reserve Law Review 1061-1087 (2009)

Comments

Written for the symposium Access to the Courts in the Roberts Era (2009) at Case Western Reserve University School of Law.

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