Just this past week, while teaching a seminar on the Supreme Court as an institution, I wondered about the way we teach constitutional law to our 1L's. I know that law students need to learn law, and as such the legal model must be given pride of place. I get that. But, assuming con law has not changed from the time I took it in the early 90's -- and a quick perusal of the leading con law case books appears to confirm my intuition -- how do we explain the exclusive attention we pay to law and legal materials as dependent variables, at the expense of everything else? That is, how do we excuse the fact that political science models -- particularly the attitudinal model and the strategic models -- are seldom part of the discussion in law schools across the country? How else could we possibly explain what is going on, in order to be able to predict the future?
These questions on mind, I read with great interest Linda Greenhouse's latest online entry in the Times. Her point is quite simple though no less important: standing doctrine, which determines whether a party has been harmed and thus can bring a suit in federal court, has long been interpreted narrowly by conservative jurists. But according to Greenhouse, this traditional approach is soon to change, as conservative judges "are suddenly throwing the courthouse doors open wide."
This is certainly interesting. And calling Senator Sessions a hypocrite is always great fun.
However, this should not be big news to anyone paying attention.
Examples abound. For one , think about how the standing question was elided in Bush v. Gore. Or, in the wrongful districting cases of the 1990's, recall how the Court forged ahead and established the "expressive harms" doctrine in Shaw v. Reno, never bothering to consider whether any plaintiff had standing to sue under this novel -- dare one say, bizarre -- legal standard. Both times, the Justices were up to something, and political attitudes did much of the heavy lifting. To suggest otherwise is to live in a fantasy world. This is not to say that these political attitudes did all the work. But shouldn't we at least allow for attitudes to be part of the discussion? For me, I am persuaded that the justices are strategic actors seeking to see their policy preferences reflected in law. That argument only presupposes that judges are human, and that the mere act of donning the judicial robe does not fully strip judges of their political preferences.
This is why Greenhouse's careful discussion of standing misses the mark, and by a long shot. When it comes to those cases that the justices care deeply about -- the "politico-moral" issues that usually divide the nation as well -- precedent stands little chance against the attitudes and ingenuity of a Court majority. This is another way of saying that the law of standing stands little chance in the hands of a Court majority wishing to reach a desired result. Thus, when Greenhouse writes in reference to Sherley v. Sebelius, the recent stem cell case, that the injury in fact as asserted by the plaintiffs is "incredible — almost as incredible as who these days is standing up for standing," she is stating a truism. Though I would not call it incredible. I would call it mundane.
Greenhouse's argument takes us back to the late 1950's, and Professor Bickel's call for the Court to exercise caution while acting, through selective use of its various procedural safeguards. He called these the "passive virtues." The standing doctrine was among these. As deployed by Bickel, these safeguards performed a conservative, restraintist function, as they would allow the Court to conserve its power and legitimacy. But as deployed by the Court in recent years, the lesson could not be clearer: the passive virtues are a state of mind, not hard and fast rules. In the hands of a willing court, they offer little resistance.
The conclusion is inescapable: we are all activists now.