At Re's Judicata, Richard Re: Standing’s Lujan-ification. Here is an excerpt:
Now consider Lujan. Written by Justice Scalia, that most famous devotee of rule-like law, Lujan synthesized prior standing precedent into a compact passage with an explicitly tripartite enumeration, two demarcated sub-points, and an absolutist lead sentence. Here it is, with some cites and alterations omitted:
The irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
This was a statement meant to be quoted and cited—and it has been. Here is a quick metric of this passage’s influence. Chevron USA v. Natural Resources Defense Counsel (1984) is widely recognized as among the most influential Supreme Court cases in recent decades. Westlaw reports that Chevron has been cited about 69,000 times, and the Westlaw headnote for Chevron’s famous two-part deference test has been cited about 5,600 times. By comparison, Westlaw reports that Lujan has been cited about 50,000 times, and the headnote for the passage quoted above has been cited a staggering 7,400 times. And that’s despite the fact that Chevron has been collecting cites for eight years longer than Lujan.
What has been the upshot of standing’s evolution from Baker to Lujan?
Another data point rejecting the proposition that Scalia has not been influential. But, is it originalist?
Posted at 6:35 AM