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Tuesday, May 20, 2014

Injury and standing, rights and merits

In this post, I suggested that the difference between an injury and a right (or claims of right) marks the difference between standing and merits. Richard's post explaining unspoken standing issues in Town of Greece offered as one possibility that while coercion is necessary to state an Establishment Clause claim, something less (say, mere offense at being subjected to sectarian prayer) is enough of an injury for standing. So are we saying the same thing?

My initial inclination was no. Richard notes that mere offense has not been sufficient injury in other contexts; for example, the stigma of race discrimination is insufficient to establish standing, as is knowledge of general wrongdoing by government. But I saw the offense in Greece as something different and more direct. The plaintiffs were offended by sectarian prayer with which they were directly confronted and made to sit through. A pure stigmatic or generalized injury would be a citizen who did not attend council meetings, but alleged that she was harmed simply because sectarian prayers were going on. It was not that there was something unique about the Establishment Clause that the Court was afraid to address; the nature of the conduct and thus the injury genuinely were different.

But as I think on it further, I am less sure we are not saying the same thing. The difference between Warth or Schlesinger and Town of Greece is the different nature of an injury caused by the Establishment Clause compared with the Equal Protection Clause, given the unique purposes of each provision. But if so, that is problematic for my attempted explanation for the standing/merits divide. It necessarily means that whether someone has suffered an injury-in-fact turns on the potential right at issue--in other words, something may be injury for one source of right (Establishment) but not for another (Equal Protection). This more closely links injury to right (or claim of right). And the closer those two things come together, the less standing doctrine makes sense as a concept distinct from merits and the more it appears as nothing more than a cheat to preempt ordinary merits analysis on some constitutional claims.

Posted by Howard Wasserman on May 20, 2014 at 01:59 PM in Civil Procedure, Howard Wasserman | Permalink


If one tries to argue that exposure to the prayer results in standing, let me pose these hypotheticals:

What if the plaintiffs had not attended the board meeting, but saw the meeting broadcast live on a local community cable access channel? What if they were merely played an audiotape of the prayer after-the-fact?

How is their injury (if one exists) any different than those who attended the board meeting live and in person?

If mere exposure confers standing, then this would force us to conclude that plaintiffs would have standing under either of these scenarios, which seems counter-intuitive to all traditional notions of standing to begin with. It would reduce the concept of standing to a meaningless triviality.

Posted by: Justin Levine | May 22, 2014 1:35:30 PM

Chris: The latter situation does arise in cases involving some structural provisions. Schlesinger (which I mentioned in the original post) was a challenge to members of Congress being reservists as a violation of the Incompatibility Clause. Because the harm from any unconstitutionality was generalized, no one would have standing.

I agree that standing asks whether this is the right person to be suing. But too often that question gets conflated with "is this a persons whose rights were violated." When framed that way, merits and standing collapse on one another.

Posted by: Howard Wasserman | May 21, 2014 1:51:27 PM

Again, I don't know much about this, so feel free to tell me I've gotten it hopelessly wrong.

Although I think standing and merits are interelated, I do think standing still serves a useful and distinct purpose: It asks whether this person is the right person to be suing. If Galloway hadn't attended a meeting, she's not the right person to sue; if Deborah Weisman (in Lee v. Weisman) hadn't attended a graduation, she's not the right person to sue.

But if Galloway and Weisman were exposed to the prayer, then they have standing to complain that exposure violates the Constitution. And if we conclude that exposure isn't a constitutional violation, the right conclusion is that they lose on the merits--not that they lose on standing.

Btw, Lee v. Weisman does talk about standing. It's very brief, but it's undeniably there. And I think the Court gets it precisely right:

"We find it unnecessary to address Daniel Weisman's taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation."

I guess the big asterisk here are the cases that suggest that something can be unconstitutional but that still no one has standing to sue. I guess, in theory, you could argue that the invocation in Lee v. Weisman is unconstitutional, but that no one has standing to challenge it. I guess I could wrap my mind around that idea, but it's so weird that I prefer to ignore it.

Posted by: Chris Lund | May 21, 2014 1:28:45 PM

Chris: You're right about what these arguments really are. But courts at least pretend that something else is going on and so must doctrinalists, such as myself. So the idea was to disaggregate the injury from the violation of the right, so as to give each one its own sphere. But if injury and right cannot be disaggregated, then my explanation stops working.

Of course, it should be clear from my past writing that I would be fine dumping standing doctrine altogether in favor of treating it all as merits.

Posted by: Howard Wasserman | May 21, 2014 12:11:41 PM

I don't know much about standing; you and Richard have much to teach me. But I have always thought that the lack-of-standing arguments in cases like Greece are really "nothing more than a cheat to preempt ordinary merits analysis." If your argument is that the plaintiffs were insufficiently exposed to the unconstitutional practice in Greece--say they never attended a board meeting--that's a standing argument. If your argument is that exposure categorically isn't a constitutional violation, that's a merits argument. You are saying that endorsements don't violate the Establishment Clause, that the Establishment Clause prohibits only coercion.

Richard's point about how Establishment Clause cases are weird in that exposure alone creates injury-in-fact--that's not a point about standing, that's a point about the Court's conception of the Establishment Clause itself. Similarly cases like Warth v. Seldin and Allen v. Wright--they hold that racial stigmatization doesn't create the necessarily injury-in-fact for standing purposes, but they imply a vision of the Equal Protection Clause where racial stigmatization (absent being personally denied equal treatment in some particular thing) isn't a violation.

When you say, "whether someone has suffered an injury-in-fact turns on the potential right at issue," I think, "Of course, that's right."

Do I have it all wrong?

Posted by: Chris Lund | May 21, 2014 8:52:51 AM

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