Today the Harvard Law Review has published its issue on the Supreme Court's October 2022 Term, and Will Baude and I have a case comment on Biden v. Nebraska and more generally on standing doctrine in the term. The piece is called Proper Parties, Proper Relief.
HLR case comments are about the case, but they're also about the big ideas behind the case, and one exemplar of that is Michael McConnell's famous case comment from 1997: Institutions and Interpretation: A Critique of City of Boerne v. Flores.
So in thinking about what the piece covers, consider three concentric circles. The narrowest is Biden v. Nebraska: was there standing for the states to sue to stop the Biden Administration's (first) student-loan relief plan? A second circle is broader: what are the circumstances in which a state is able, or should be able, to sue the national government? A third circle is broader still, and it's the first principles of standing doctrine: What is the core of standing? What is it good for? What exactly is the point?
Proper Parties, Proper Relief tackles all these questions, and along the way it also discusses other major cases from the October 2022 Term, including United States v. Texas and Haaland v. Brackeen. Together these cases suggest important shifts in standing doctrine, especially state standing.
Part I, called "Basic Principles," offers an account of standing doctrine that emphasizes two main ideas–proper parties and proper relief—and it connects both of these to the judicial role.
Part II, called "The Massachusetts v. EPA Era and the Shifting Judicial Role," analyzes briefly and critically the meteoric rise of state standing (which is due to multiple factors, not just Massachusetts v. EPA).
Part III, called "End of an Era? Two Cheers for the Supreme Court's Course Correction," works through in detail the Supreme Court's standing cases from the October 2022 Term, especially showing how they have narrowed—perhaps even gutted—the expansive readings of Massachusetts v. EPA that have become commonplace in the lower federal courts.
Finally, Part IV, called "The Enduring Choice Between Two Approaches to Standing," distinguishes between an external concept of standing, in which it is simply a hurdle for a judge to get over before getting on with the real work; and internal concept of standing, in which it is part of the role morality of being a judge.
The piece concludes with this paragraph:
Yet as courts have come to govern so much of our political life, and as so many of us have come to expect them to do so, standing doctrine and its corresponding view of judicial power will always be under pressure. Unconstrained by such niceties, there is so much more a judge could do! This Term suggests that the Court is trying to nudge the judiciary toward the classical view of the judicial role, or at least toward the circa 2005 view of the judicial role, and if so that is a good development. But it will not be the end of the temptation. Constant pressure requires constant vigilance.
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