Legal scholars have long argued that courts have used the doctrine of standing to control litigant access to the courts. These scholars, using primarily qualitative and anecdotal accounts, argue that Justices Frankfurter and Brandeis created the doctrine of standing to avoid judicial determination on New Deal legislation (Winter 1988; Sunstein 1988; Ho and Ross 2009). These justices, fearful of a conservative majority devised standing to allow states to experiment with liberal legislation (Winter 1988, 1456). Stearns (1995) argues that the Supreme Court used standing as a mechanism to control lower federal courts’ ability to render decisions on the merits that invalidated New Deal legislation. Regulations promulgated pursuant to the APA conferred standing to various agencies and the government, but did not confer such standing to the beneficiaries of agency action (Sunstein 1988). This jurisprudence provided that plaintiffs had standing to sue if an agency breached a duty owed directly to the plaintiff. Courts’ application of this doctrine limited lawsuits challenging various laws, which protected many New Deal
regulations. Accordingly, progressive courts limited standing to shield administrative agencies from potential lawsuits challenging New Deal regulations. Courts granted standing after Congress began to confer standing by statute, indicating an expressed Congressional intent to monitor agency action. Liberal courts then recognized that Congressional intent was carried forward when litigants had the ability to sue when agencies failed to carry forward their
Congressional mandate. Liberal courts reasoned that Congress desired to protect the interests of those whom the statute sought to protect (Ho and Ross 2010). Even though Congress amended
the APA in 1946 to confer standing to litigants who suffered an injury, the general provision left room for judicial discretion and ideological interpretation (Sunstein 1988).
Although there is a rich legal literature examining qualitatively judges’ use of their ideology in issues addressing questions of standing, few empirical analyses exist. Among those is Segal and Spaeth (1993; 2002), who provide summary statistics regarding standing decisions of the Supreme Court. They characterize standing decisions in terms of the Court granting access to its doors. Particularly, they surveyed cases from 1953 to 2000 in which the Supreme Court questioned a litigant’s standing to sue. They find that the Warren Court conferred standing in 68.9 percent of its cases, while the Burger and Rehnquist Courts held that plaintiffs had standing in 42.7 and 38.6, respectively (2002, 233). However, the Supreme Court addressed the issue of standing in only a small number of cases. Within the terms they examined, only 174 cases within that period addressed standing. Of those 174, the Court held that the litigant lacked standing in 90 cases. Only limited conclusions can be drawn from these preliminary statistics. Using a multivariate regression, Ho and Ross (2010) find evidence that as the ideological composition of the Supreme Court changes, the majority granted or denied standing to litigants who shared their ideological preferences.
Other scholars have conducted empirical work regarding standing decisions in lower federal courts. Staudt (2004) finds that policy preferences impact standing decisions in
examining cases involving taxpayer standing to challenge governmental expenditures in federal courts at all levels of the judicial hierarchy. Regarding circuit courts, she finds that only the party of the president of circuit court judges is statistically significant in decisions to confer standing to taxpayers seeking to challenge a state law. Pierce (1999) finds that Republican judges are more likely than Democratic judges to deny standing to plaintiffs asserting environmental claims.
However, Pierce primarily employs a legal analysis and empirically does not control for
independent variables. Fleisher (2007) used empirics to examine standing decisions for the D.C. Circuit Court panels finding no statistically significant difference in the likelihood of
conservative and liberal panels dismissing a case on standing grounds. Rowland and Todd (1991) study the influence of ideology on standing decisions of federal district court judges. They find that the ideology of the judge impacts standing decisions. Judges who were appointed by President Reagan were slightly less likely to confer standing to litigants classified as “underdogs” than Carter-appointed judges. Moreover, Braman (2006) finds experimental evidence that legally-trained participants acting as federal district court judges considered the merits of a case when rendering a decision to confer standing to conform to their own ideological preferences. Rendering a judgment on a threshold issue as opposed to the merits of a case thus provides an opportunity to effect the outcome without reaching the merits. Scholars have studies Article III standing, but the scholarship examining prudential standing is quite sparse. Warshaw and Wannier (2011) find evidence that circuit courts are more likely to confer standing to the beneficiaries of the environmental regulation than the industries who are regulated. They find that Democratic-appointed circuit panels were more likely deny standing to businesses seeking standing in cases involving environmental regulation after the Supreme Court’s decision in Lujan v. Defenders of Wildlife (1992). However, public law scholars have yet to provide substantial empirical analyses regarding federal courts’ use of standing decisions and access control. As my contribution, I offer a theory and testable hypotheses to address this gap in the literature.