Part two, judicial review. Section two, justiciability. Subsection A, standing.

Standing

Let's turn first to standing. Standing goes to whether a plaintiff is the proper party to bring the matter to the court for adjudication. This question focuses exclusively on who the plaintiff is, not what the case is about. You could have a perfect case, a wonderful voting rights case, or a great challenge to a federal regulation, but unless the plaintiff is the right one to bring the case before the federal courts, the court won't hear it.

Standing is a jurisdictional question, meaning that without it, the court has no jurisdiction to hear the case. As a result, a defendant can raise it at any time during the litigation, even after the case has already started.

Three Requirements for Standing

To have Article Three standing, a plaintiff must meet three requirements. They must have suffered (1) a concrete particularized injury-in-fact, ( 2) that bears a causal connection to the alleged misconduct, and that (3) a favorable court decision is likely to redress. I'll say that again. A plaintiff must have suffered a concrete particularized injury-in-fact, that bears a causal connection to an alleged misconduct or law, and that a favorable court decision is likely to redress.

First Requirement of Standing: Injury in Fact

Let's turn to injury first. A plaintiff must allege and prove that he personally has been injured or imminently will be injured in order for his case to be heard in court. This doesn't require physical injury, of course. It means a violation of rights. The rights at issue could be common law rights, constitutional rights, statutory rights, or really any other injury a court finds substantial. This could even include aesthetic rights or environmental harms.

A plaintiff may only assert injuries that he personally suffered, however. We'll get to a couple of variations on that theme below, namely, third-party standing and the prohibition on generalized grievances, but the ground rule to remember and write down on the exam is that a plaintiff has to have personally suffered an injury.

Injunction

In addition, if a plaintiff is seeking an injunction, that is, they want a court to issue a declaration that the injury has to stop immediately, the plaintiff must also show a high likelihood of future harm, that is, they'll keep losing money or their right will continue to be violated unless the court intervenes.

If a question on the exam asks which plaintiff has the best standing to sue, look to a plaintiff who has personally suffered an injury. If all of the choices have suffered an injury, it's a good bet to choose the one who has suffered an economic loss. Ongoing monetary loss is very persuasive to federal courts as a reason to have standing.

Example

Let's look at an example. Say there's a student challenging race-based admission policies at a university. This student is white and she alleges that white students with high GPAs are not gaining admission to the university because the university is filling its classes with students of color, with lower GPAs.

If a student had actually gained admission to the university, she lacks any kind of injury. Even if the policy did disadvantage high-scoring white students, it didn't disadvantage this plaintiff. The case would be dismissed because the plaintiff has suffered no injury-in-fact.

Exceptions to Injury-in-Fact Requirement

There are two exceptions to note in the requirement of the injury-in-fact prong of the standing doctrine, before we move on to causation and redressability, the second prong.

Generalized Grievances

The first is that there's a category of plaintiff who lacks standing to sue, even though they may actually have been injured. This is a person with a "generalized grievance." This usually takes the form of a citizen who wants standing as a taxpayer. His taxpayer money is being spent in a way that he disagrees with or argues is unconstitutional. Arguably, this person has a point. His tax dollars could be used to violate his own or other people's rights, and he wants to put a stop to it. Standing doctrine, however, says that taxpayers lack standing to sue without more injury than simply contributing to a trillion-dollar federal budget.

On the bar, the question might say, " Plaintiff is suing as a taxpayer or plaintiff is suing as a citizen." This is how you know he lacks standing.

Religious Spending Exception

There's one exception to this, however. Taxpayers do have standing to challenge government expenditures as violating the Establishment Clause of the First Amendment, the clause that prevents the government from favoring one religion over another. But, in general, the rule is that people suing as a taxpayer or as a citizen lack standing.

Third-Party Standing

Another exception to the injury-in-fact prong of the standing doctrine is the third-party standing doctrine. At first, this doesn't look like it should be an exception at all. Of course you can't assert rights that aren't your own. The standing rule is to ensure that cases are argued only by those who actually want their rights to be litigated, and the belief that people will argue more effectively for their own interests.

Exception 1: Close Relationship

There are three exceptions to note here, however, that permit third-party standing. First, if there's a close relationship between the plaintiff and the injured third party, second, if there's organizational standing and, third, if the injured third party is unlikely to be able to assert their own rights.

Let's take each of these in turn. First, a party is able to assert the rights of another person in court if there's a "close relationship" between the plaintiff and the injured party. This could be a doctor and a patient, an attorney and a client, a parent and a child, or a husband and wife, but these are not a given. Parties still have to prove that their interests are aligned.

The close relationship can also be economic. For example, take the case of a bookseller suing to enforce the rights of his patrons to purchase a particular banned book from his store.

Yes, it's the buyers' First Amendment injury when they can't buy the banned book, but it's also the seller’s economic injury that they're losing money from the sale. Thus, the bookseller would be able to have third-party standing on behalf of his buyers in federal court.

Similarly, the Supreme Court has held that a white person bound by a restriction not to sell realty to a black person, may assert constitutional rights of the black people not before the court. While it's the seller's economic injury, it's the Fifth and Fourteenth Amendment rights of African-Americans not to be bound by racially restrictive covenants. That's the close relationship part of the third-party standing doctrine.

Exception 2: Organizational Standing

Next, organizations may have standing to sue on behalf of their members, provided that all three of the following factors are met. Individual members would have their own standing to sue, the interest asserted is germane to the organization's purpose, and neither the claim nor relief requires the participation of individual members.

Let's look at an example. In NAACP v. Alabama, the state had obtained a court order requiring the NAACP to produce membership lists. The NAACP was permitted to litigate their members’ First Amendment rights because litigation by individual NAACP members would require disclosure of their identity and, thus, destroy the freedom of association threatened by the court order. Therefore, the NAACP, as an organization, was permitted to act on the members' behalf to assert their constitutional rights.

This met the three-part, third-party standing test. The individual members would have had standing to sue because it's their privacy and associational rights at stake. These rights were integral to the purpose of the NAACP, and the relief didn't require participation by the members. A court order could have just stopped the publication of the list, no member involvement needed.

Exception 3: Unable to Assert Own Rights

The privacy component of the NAACP case highlights another important prong of the third-party standing doctrine. The injured third party must also be unlikely to be able to assert their own rights. In other words, there's a reason they can't come to court. In the NAACP case, it's that the case was about preserving the members' rights to privacy and association. Forcing the harmed party to come into court would destroy that freedom.

Similarly, in upholding two state bans on assisted suicide, the Supreme Court permitted doctors to raise the due process and equal protection claims of their terminally ill patients.

These patients are unlikely to be able to assert their own rights, so the doctors were able to assert the rights for them via the third-party standing doctrine.

There you have the injury-in-fact prong of the standing doctrine. A plaintiff must prove that they personally have been injured or imminently will be injured in order for their case to be heard in court.

There's no taxpayer or citizen standing, and rights can be asserted by third parties only where there's a close relationship or organizational standing and the parties are unlikely to be able to assert the rights themselves.

Example

Let's do a multiple-choice review. A state legislature enacted a statute prohibiting election-related activities on public roadways within a hundred days of an election. Which of the following plaintiffs would be most likely to have standing in federal court to attack the constitutionality of the statute? A, a state legislator who voted against the statute because she believed it to be unconstitutional. B, a candidate for election to the state legislature who intended to organize a caravan of supporters to drive down a state highway 60 days before the election. C, a state taxpayer. D, a representative of an organization formed to "seek judicial declarations that laws unconstitutionally infringing freedom of speech are void."

The answer is B, the candidate who intends to hold a caravan on a highway. This is a person who will suffer an imminent injury if he's not allowed to campaign and, thus, he has standing. Remember, this question doesn't ask you if the person will win, only if he has standing to sue. The answer is not A. Individual legislators lack the injury necessary to have standing to attack the statute. The answer is not C, as individual taxpayers lack standing. And the answer is not D, because while an organization can represent a plaintiff through the third-party standing doctrine, this organization is seeking a declaratory judgment without an imminent threat of harm to one of its members.