62 Stanford Law Review (forthcoming, 2009)
Daniel E. Ho & Erica L. Ross
While the standing doctrine is one of the most widely theorized and
criticized doctrines in U.S. law, its origins remain controversial.
One revisionist view espouses that New Deal progressive justices
purposely invented the standing doctrine to insulate administrative
agencies from judicial review. Yet existing support for this
"insulation thesis" is weak. Our Article provides the first
systematic empirical evidence of the historical evolution of standing.
We synthesize the theory and claims underlying the insulation thesis
and compile a new database of every standing issue decided, along with
all contested merits votes, by the Supreme Court from 1921-2006. To
overcome conventional problems of haphazard case selection, we amass,
read, and classify over 1,500 cases cited in historical treatments of
the doctrine, assembling a database of all standing issues contested.
With modern statistical methods and this new dataset -- comprised of
47,570 votes for 5,497 unique issues and 229 standing issues -- we find
compelling evidence for one version of the insulation thesis. Before
1940, progressive justices disproportionately deny standing to
plaintiffs in cases that largely involve challenges to administrative
agencies. After 1940, the political valence of the standing doctrine
reverses: progressives uniformly favor standing. Justices Douglas and
Black, in particular, track this evolution (and valence reversal) of
the standing doctrine. While the evidence for liberal insulation is
strong, the historical period of unanimously decided standing cases
prior to the period of insulation does not support liberal invention
per se. Our results challenge legal inquiries of what claims are
traditionally amenable to judicial resolution and highlight the
unintended consequences of judicial innovation.