Still Standing in the Roberts Court (Er, Minus the “Roberts”)

Jonathan Adler, an environmental law professor and regular Volokh contributor, recently argued that “the net effect of the Roberts Court’s decisions on standing has been to liberalize standing rules, thereby increasing access to federal courts.” Adler states that whereas the Roberts Court may have limited standing (and therefore access to courts) in cases involving statutory language and legislative intent, such as in preemption cases like Riegel v. Medtronic, it has actually expanded standing grounds in cases involving constitutional standing:
Those [standing decisions] that have changed standing law, in particular Sprint v. APCC and Massachusetts v. EPA, have expanded Article III standing….

…the Roberts Court has yet to tighten the requirements Article III standing in any meaningful way. To the contrary, insofar as the Roberts Court has worked any change in standing law over the past three years, it has made it easier for states and citizen groups to sue in federal court seeking enforcement of regulatory laws.
That is true. But Adler’s repeated attribution of these rulings to the “Roberts Court” strikes us as a little disingenuous. As Adler knows, but does not mention in his post, Chief Justice Roberts and Justice Samuel Alito, who together distinguish the Roberts Court from its predecessor, the Rehnquist Court, were aggressive dissenters in the Court’s 5-4 rulings in Massachusetts and Sprint. The Court’s standing rulings since Roberts and Alito joined indicate only that in this area of the law Chief Justice Roberts has yet to assemble the five votes necessary to change the direction of the Court’s jurisprudence.

For folks like us, who believe that the Chief Justice’s narrow views on court access are inconsistent with constitutional text and history, it is a happy thing that the Supreme Court under Chief Justice Roberts is not yet the “Roberts Court” in terms of the Chief’s ability to control the Court’s Article III standing jurisprudence.

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