Scalia's Legacy: Originalism and Change in the Law of Standing
| Author | James E. Pfander |
| Position | Owen L. Coon Professor of Law, Northwestern Pritzker School of Law |
| Pages | 85-107 |
Scalia’S legacy: OriginaliSm and change
in the law Of Standing
James E. Pfander*
Northwestern Pritzker School of Law
ABSTRACT
Perhaps no single Justice fashioned as many changes to the law of standing as that
most gifted originalist, Antonin Scalia. It was Justice Scalia who rst deployed twentieth
century standing rules to invalidate a citizen suit provision; who promoted the prudential
rule against the adjudication of generalized grievances to constitutional status; who
pressed to constitutionalize the adverse-party rule; who recongured informer litigation
to preserve the injury-in-fact requirement; and who recently re-packaged the Court’s old
prudential standing doctrine as a merits-based inquiry into the plaintiff’s statutory right
to sue. That he has done so much to re-work modern litigation in the name of delity
to the workways of eighteenth century lawyers “in the English courts at Westminster”
testies to his considerable rhetorical skills. In this essay, I evaluate Justice Scalia’s
contributions to this important body of jurisdictional law and then step back to consider
his legacy.
CONTENTS
Br. J. Am. Leg. Studies 6(1) (2017), DOI: 10.1515/bjals-2017-0006
© 2017 James E. Pfander, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Owen L. Coon Professor of Law, Northwestern Pritzker School of Law. Thanks to the
Northwestern law faculty research program for supporting this endeavor; to the faculty
workshop at Northwestern, and to Henry Monaghan, Bob Pushaw, Marty Redish and Tara Grove
for comments and useful suggestions. Thanks as well to Brian Christopher Jones and the
British Journal of American Legal Studies for their invitation to participate in this engaging
symposium on Justice Scalia’s legacy and for their thoughtful editorial suggestions.
i. intrOductiOn .................................................................................................86
ii. Standing law BefOre JuStice Scalia’S arrival .........................................88
iii. then-Judge Scalia’S critique Of Standing dOctrine ...............................90
iv. JuStice Scalia and Standing dOctrine ......................................................91
v. aSSeSSing JuStice Scalia’S cOntriButiOnS tO the law Of Standing ........... 99
vi. textual and hiStOrical PrOBlemS with the caSe-Or-cOntrOverSy
requirement ............................................................................................101
vii. cOncluSiOn .............................................................................................105
6 Br. J. Am. Leg. Studies (2017)
i. intrOductiOn
Among the many distinctive features of his jurisprudence,1 Justice Antonin Scalia
expressed a preference for clear rules, for text-based approaches to statutory
interpretation, and for a focus on the original meaning of the Constitution as the surest
guide to that document’s interpretation. He defended originalism at every opportunity,
arguing that it best complied with the framers’ own view of the interpretive process
and best constrained an activist judiciary. By hewing closely to the original meaning,
federal judges would avoid the cardinal sin of reading their own policy preferences
into the document. That judicial difdence, in turn, would preserve the lawmaking
primacy of the elected branches of government. In the face of constitutional doubts,
judges should stay their hands and allow the political branches of government to
update governing law to meet the exigencies of the day.2 Building on these ideas,
Justice Scalia mounted withering criticisms of such decisions as Planned Parenthood
v. Casey3 (reafrming the constitutional right to an abortion) and Obergefell v.
Hodges4 (recognizing a constitutional right to same-sex marriage). He invariably took
the position that, although it was hard to do well, originalism remained the best mode
of constitutional interpretation. In time, his view became widely shared, particularly
among lawyers, judges and academics who shared his political commitments.
This Essay evaluates one of the key claims of Justice Scalia’s jurisprudence, his
claim that consistent application of originalist precepts will constrain federal judges
and preserve the law-making role of the political branches. This Essay conducts the
evaluation by looking closely at Justice Scalia’s role in the development of Article
III standing doctrine. Article III of the U.S. Constitution denes the jurisdiction
of the federal courts by specifying the “cases” and “controversies” to which the
judicial power of the United States shall “extend.”5 It does not, however, dene the
1 Justice Scalia conducted an ongoing seminar on interpretive method, both in the law review
articles he wrote, see note 2 infra, and in his numerous public appearances. For a useful
assessment of Justice Scalia’s role in the development of originalist precepts, see Thomas B.
Colby & Peter J. Smith, Living Originalism, 59 duke l.J. 239, 248-49 (2009) (describing
Justice Scalia as a leading proponent of the change from original intent to original meaning
as the touchstone of originalist inquiry). On the manifold character of originalism, see
Mitchell N. Berman, Originalism Is Bunk, 84 n.y.u. l. rev. 1 (2009) (emphasizing the
many and varied forms of originalist inquiry). For criticisms of Justice Scalia’s consistency
in adhering to his original meaning construct, see Mitchell N. Berman, Originalism and
Its Discontents (Plus a Thought or Two About Abortion), 24 cOnSt. cOmment. 383 (2007).
On the politics of adherence to originalism, see Robert Post & Reva Siegel, Originalism as
Political Practice: The Right’s Living Constitution, 75 fOrdham l. rev. 545 (2006). For an
early and inuential criticism of original intent, one that helped push adherents to original
meaning, see H. Jefferson Powell, The Original Understanding of Original Intent, 98
harv. l. rev. 885, 907 (1985) (arguing that the framers interpreted the Constitution’s
language and structure and did not rely on the personal intentions of the participants).
2 For his own account of his originalist, rules-based jurisprudence, see Antonin Scalia,
Originalism: The Lesser Evil, 57 u. cin. l. rev. 849 (1989); antOnin Scalia, a matter
Of interPretatiOn: federal cOurtS and the law (1997); Antonin Scalia, The Rule of
Law as a Law of Rules, 56 u. chi. l. rev. 1175 (1989).
3 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J.,
dissenting).
4 Obergefell v. Hodges, 135 S. Ct. 2584, 2626 (2015) (Scalia, J., dissenting).
5 u.S. cOnSt., art. III, § 2.
86
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