The Rule Against Just One Generalized Grievance

During its romp through standing doctrine, last year’s unanimous Supreme Court decision in Lexmark had something to say about the rule against generalized grievances. In short, Lexmark illustrates that the rule against standing for “generalized grievances” (plural) has transformed into a rule against just one generalized grievance. That is, instead of prohibiting standing based on all widely shared interests, the rule has been narrowed so as to apply only when plaintiffs assert the widely shared interest in promoting compliance with the law. As a result, the generalized grievance rule now operates as nothing more than an application of the injury-in-fact requirement.

By way of background, Lexmark’s main holding was that the supposedly prudential “zone-of-interest” or “statutory standing” doctrine is actually a merits inquiry. In a footnote, Lexmark suggested that other terminological dominoes might also fall: “The zone-of-interests test is not the only concept that we have previously classified as an aspect of ‘prudential standing’ but for which, upon closer inspection, we have found that label inapt.” Lexmark then discussed the rule against generalized grievances (as well as third party standing, which I discussed here).

Here is what Lexmark says about generalized grievances:

Take, for example, our reluctance to entertain generalized grievances -- i.e., suits “claiming only harm to [the plaintiff's] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close [ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam ); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006); Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not ‘prudential’ ones.

The question here is whether the Court’s “reluctance to entertain generalized grievances” is an Article III standing requirement or a prudential standing requirement. In the passage above, the Court ultimately concludes that claims of this type “are barred for constitutional reasons.”

But, what is a generalized grievance? In the above passage, Lexmark answered with a two-clause quote from Lujan. One clause sounds in adequacy and the other in relativity. The adequacy clause refers to suits “claiming only harm to [the plaintiff’s] and every citizen’s interest in proper application of the Constitution and laws.” The relativity clause refers to suits “seeking relief that no more directly and tangibly benefits him than it does the public at large.”

Lexmark and Lujan appear to view these two clauses as interchangeable, but they are not. For one thing, the adequacy prong talks about the plaintiff’s “harm,” whereas the relativity prong focuses on “relief.” Setting that aside, the adequacy prong doesn’t just refer to harms that are universally shared; it also specifies a particular type of shared harm that cannot generate standing—namely, “every citizen’s interest in proper application of the Constitution and laws.” There’s often a big difference between (i) interests that are widely shared and (ii) interests in promoting lawfulness. Pollution could produce widespread sickness, but those victims would have much more than an interest in proper application of the law. Conversely, people frequently develop idiosyncratic interests in particular instances of injustice; and those persons can have strong, unshared interests in the proper application of the law.

In the past, the Court has taken seriously the possibility that both types of interests generate standing problems—but for quite different reasons. There is no doubt that an interest in promoting the law is doctrinally insufficient to create Article III standing. Indeed, that conclusion seems inherent in the idea of an Article III “injury in fact” requirement. The rule against “widely shared” grievances, by contrast, is tethered not to the Article III “injury in fact” rule, but rather to a more prudential logic: “widely shared” and therefore majoritarian interests are best remedied through the political process, whereas courts seem better suited to protecting the legal interests of individuals and minority groups.

For an example of the prudential, “widely shared” version of the rule against generalized grievances, consider Valley Forge, which Lexmark cites. Here is what Valley Forge says about generalized grievances:

[E]ven when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating “abstract questions of wide public significance” which amount to “generalized grievances,” pervasively shared and most appropriately addressed in the representative branches.

This passage is saying that even plaintiffs who have suffered an "injury" for Article III purposes may lack standing under the "generalized grievances" rule. But that statement, according to Lexmark, is just wrong. The bar on generalized grievances isn’t in addition to Article III standing, but part of it.

How could a case like Valley Forge, which is generally in keeping with contemporary standing doctrine, make such a blunder? The answer is that, in the years since Valley Forge, the rule against generalized grievances has been narrowed. As outlined above, Lexmark quoted Lujan’s description of the generalized grievance rule, which conflated widely shared interests with the interest in promoting lawfulness. Under that view, the rule applies only when a plaintiff is specifically complaining about the widely shared interest in the proper application of the law. And that ethereal interest, whether widely shared or not, cannot meet the Article III injury-in-fact requirement. So Lexmark wasn’t really saying that Article III counsels against hearing “generalized grievances” in the plural, but rather that Article III bars just one generalized grievance—namely, the generalized grievance in promoting proper enforcement of the law.

The idea that the rule is actually against just one generalized grievance finds support in recent cases, particularly FEC v. Akins. There, a majority initially invoked prudential logic: “Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.” However, Akins quickly narrowed that broad prudential maxim, noting that the generalized grievance rule “invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature—for example, harm to the ‘common concern for obedience to law.’” (Even Valley Forge, you'll remember, used the term "abstract" to describe generalized grievances.) In other words, cases that are ostensibly about widely shared injuries are actually cases about "abstract" injuries. In this way, Akins endorsed a rule against abstract grievances—which seems redundant with the injury-in-fact requirement.

The upshot is that the prudential rule against hearing widely shared grievances is fast becoming extinct, even though it is one of the oldest principles in modern standing law, with roots dating back (at least) to Frothingham v. Mellon. You can see this shift in the 2007 case Massachusetts v. EPA, where the alleged injury pertained to the future consequences of global warming. One plausible way to view the case was that the plaintiffs were concerned with future injuries that were concrete but very widely shared. The Chief Justice’s dissent emphasized that framing, noting at the outset that global warming “may ultimately affect nearly everyone on the planet in some potentially adverse way.” The Chief went on to develop this point in terms of the “particularized injury” requirement, saying that the “very concept of global warming seems inconsistent with this particularization requirement.” In response to this backdoor argument against widely shared injuries, the majority simply cited Akins: “[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact.’”

For better or worse, something has dropped from the doctrine: the prudentially grounded notion that the Court should think twice before granting relief for widely shared injuries.

The above is cross-posted from Re's Judicata.