Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication

Abstract

This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern doctrine of standing. Alexander Bickel's influential writing on the "passive virtues" views justiciability doctrines as an aid to wise decision making. Bickel emphasized that the law of standing would provide concrete information about the consequences of laws undergoing judicial review that would contribute to sounder more enduring judgments as to constitutionality. Analysis of the reasons that information regarding injury often has no influence upon the merits of many public law cases casts doubt on justiciability doctrines' capacity to aid wise decision-making. Courts need to adopt a new set of "active virtues", a set of practices governing the framing, consideration, and resolution of the merits of public law cases.