Right and Left Continue to Change Where they Stand on Standing

In this week’s oral arguments in the two gay marriage cases before the Supreme Court, right and left-wing litigants continued to take unaccustomed positions on standing: the technical legal doctrine that determines whether would-parties to a lawsuit have enough of an interest at stake to be allowed to participate in the case. Historically, conservatives have tended to advocate restrictive standing doctrines, while liberals have been more permissive. Yet, in the gay marriage cases, it was conservatives who argued that the proponents of California’s Proposition 8 had the right to defend it in court, even though they are not government officials and do not suffer any concrete injury if California is forced to permit gay marriage. In the DOMA case, conservative members of Congress have claimed that they have standing to defend the Defense of Marriage Act in court, even though they wouldn’t suffer any clear injury if it were struck down.

During the oral argument in the Proposition 8 case, conservative justices tended to support the Prop 8 proponents’ right standing, while liberal ones were more hostile, an unusual stance for both groups. Matters are less clear in the DOMA case, where positions on standing among the justices did not as clearly break down along ideological lines. But they still don’t seem to be following the traditional pattern of liberals favoring broad standing rules, and conservatives narrow ones.

The standing issues in these cases arise from an unusual situation in which the liberal Democratic governor of California and the Obama administration chose not to defend the state and federal laws being challenged. As a result, outside conservative groups stepped in to do so. Even so, as I pointed out three years ago, these cases are part of a broader pattern in which standing issues no longer break down along predictable right-left lines:

[I]t is… likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones. The ideological split over the issue dates back to the 1970s and 80s, when broad theories of standing mostly favored liberal litigants (especially environmentalists) challenging policies adopted by Republican-controlled administrative agencies. At that time, many believed that Republicans had a lock on the presidency, and that conservatives had little to gain and much to lose from strategic constitutional litigation.

Neither assumption is valid today. Democrats are once again competitive in presidential politics. And the rise of conservative and libertarian public interest law groups combined with a more conservative Supreme Court, ensure that the right can play offense as well as defense in constitutional litigation. For these reasons, narrow standing rules no longer consistently tilt the playing field in favor of conservatives. But neither do they uniformly advance liberal interests. Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

This doesn’t mean that positions on standing will become purely opportunistic. Some judges and legal scholars will continue to be principled advocates of either narrow or broad approaches to the issue. I myself have argued against restrictive standing rules, while others, such as co-blogger Jonathan Adler, have defended them. But such disagreements will now be less likely to break down along right-left ideological lines.