Topic: Principal of Standing
Senator: DeWine
Date: SEPTEMBER 14, 2005
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SPECTER: Senator DeWine?
DEWINE: Thank you, Mr Chairman.
Judge, good afternoon.
ROBERTS: Good afternoon.
DEWINE: You know, Judge, our Constitution created federal courts with limited powers. And, in fact, Article 3 of the Constitution only gives federal courts the power to decide cases and controversies. This case and controversy requirement means that federal courts will only hear real lawsuits involving real parties with real injuries. We talked about this over the last several days. This has led to the development of a number of different rules about when people can bring lawsuits in federal court and when they cannot. One of these rules, as you well know, is the principle of standing. You talked about this in 1993 in a law review article you wrote in the Duke Law Journal. You said the following, and I'll quote briefly from this: "The legitimacy of an unelected life tenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary's power in Article 3 to actual cases and controversies."
DEWINE: You went on to later state the following: "The Article 3 standing requirement ensures that the court is carrying out its function of deciding a case or controversy rather than fulfilling the executive responsibility of taking care of the laws we faithfully execute," end of quote. Judge, could you elaborate on these statements today and maybe explain briefly what the doctrine of standing is and why that doctrine is really so important to our constitutional system?
ROBERTS: Well, Senator, your question really ties together a few themes we've already touched on. I don't remember if it was you or someone else who referenced Justice White's description of his obligation and what it was, and his answer was to decide cases.
DEWINE: That was me.
ROBERTS: And the basis for the institution of judicial review, as explained by Chief Justice John Marshall in Marbury v. Madison, is similarly grounded on the obligation to decide cases and controversies. Because if you look at the Constitution, it doesn't say in Article 3 that the judicial branch is established in order to tell us all what the Constitution means. It says that the judicial branch is established to decide cases and controversies arising under this Constitution and the laws. And that is the basis for the authority to interpret the Constitution. As Marshall explained, we have to decide a case. If the argument is that it's inconsistent with the Constitution, we have to decide that. Therefore, we have that authority. And I believe that's consistent with the intent of the framers. But it does mean, and this is the point I was trying to make in that small little law review comment, that judges should be very careful to make sure they've got a real case or controversy before them, because that is the soul basis for the legitimacy of them acting in the manner they do in a democratic republic. They're not accountable to the people.
As judges they have the obligation to decide cases according to the rule of law. So, first, make sure you've got a real case and a real case is not simply, "I'm interested in this area. I don't like what the government is doing." Or, "I' don't like this law, and so I'm going to go to court." What the standing doctrine requires is that you actually be injured by what the government is doing, injured by Congress' action. Now, the injury doesn't have to be economic. The Supreme Court has explained in cases, like Sierra Club v. Morton, it can be aesthetic. It can be environmental. It can cover a wide range of injuries. But you have to show some injury that separates you from the general public, so you're just not voicing a gripe; you're trying to get a case decided. That's the importance of the standing doctrine.
DEWINE: I appreciate the explanation, Judge.
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