State Standing's Uncertain Stakes

Aziz Z. Huq*

Whether states have Article III standing is a question that has in recent years induced a puzzling and nonstandard patterning of votes amongst the Justices of the Supreme Court. It is, of course, not uncommon for that bench to be characterized by sharp ideological divides. What is unusual and symptomatic in the state standing litigation context is rather this: specific Justices seem to adopt divergent, seemingly inconsistent, positions on the same basic question of constitutional law when it is presented in different litigation matters.¹ When it comes to state standing, the Court’s ideological divide is not merely acute but also inconstant and unstable.

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© 2019 Aziz Z. Huq. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Frank and Bernice J. Greenberg Professor of Law & Mark Claster Mamolen Teaching Scholar, University of Chicago Law School. Work on this paper was supported by the Frank J. Cicero Fund. I am very grateful to the Notre Dame Law Review’s editors for their careful work, and for their initial invitation, and to Maggie Lemos for helpful comments.

1 At a high enough generality, of course, it is possible to identify a number of parallel cases. Consider the choice between constitutional rules and standards. See Kathleen M. Sullivan, The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 98 (1992) (“[S]trong substantive theories of rules as conservative and standards as liberal—or vice versa—are wrong.”). State standing is unusual insofar as the pivots by individual Justices occur across cases with the same kind of plaintiff pressing slight variants on the same basic interest.