Over the years, I have spoken the following words to numerous American Government classes:
If you go into the legal profession, and if you are ever working for an interest group and using litigation to achieve policy goals from court rulings, make sure that you have a plaintiff with an actual “standing to sue,” because no matter how good your arguments are, the case can get thrown out if you don’t have that.
I’ve been reflecting on that in relation to the new Texas law, because that law totally subverts that concept by making it possible for anybody who disapproves of abortion to file suit against an abortion doctor, or against anybody who aids and abets an abortion in any way (like giving a woman a ride to the abortion clinic, or paying for the abortion) and collect $10,000 for doing so. The question is, how can this be possible?
I’m looking into the question, so this post is merely a progress report on what I’ve found so far. What I’ve found so far is that the Supreme Court has made itself very clear on “standing to sue,” but only (as far as I know) as far as federal cases are concerned. In the 2016 decision Spokeo v. Robins, the Court noted that Article III of the Constitution assigns federal judicial power over “cases” and “controversies” and says that limiting the power of the judiciary to resolving cases and controversies is crucial to preserving the balance of power among the three branches and the limits of the judicial branch’s power. Justice Alito, in that ruling, wrote:
Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood…. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong….
Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements…. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.
Alito cites a number of precedents, most notably Lujan v. Defenders of Wildlife (1992) and Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000).
But again, that’s just for the federal courts. There are two questions that I don’t know the answer to, in this regard: (1) Is there any case law precedent that empowers the federal courts to apply this principle to state courts? (2) Is there a body of case law precedent at the state level in Texas that would facilitate getting this law challenged in a Texas state court on the basis of “standing to sue”? I’m still working on how to find out those two things. But in any event, it certainly goes against years, probably centuries, of judicial tradition for there to be a law that empowers any ordinary person to file suit against another on the mere basis of personal disapproval of an action committed by that other person.