Who speaks in federal court for the structural principles of the federal Constitution? Under familiar practice—endorsed by the Supreme Court in its 2011 decision Bond v. United States—it is not solely the institutions empowered directly by federalism or the separation of powers but also individual litigants who can raise structural constitutional objections. Such individual standing for the structural constitution is unusual because, in effect, it enables a species of third-party standing elsewhere condemned by the Court. This Article analyzes individual standing for the structural constitution from both doctrinal and political economy perspectives. Such individual standing, I contend, conflicts with Article III’s larger ambition to exclude from federal court those controversies with excessive externalities. Consideration of structural litigation’s political economy further shows that enlarging the pool of litigants by allowing individual as well as institutions to sue is unlikely to yield closer conformity to the Constitution given interest group dynamics. As an alternative to the current regime, the Article specifies a straitened regime of narrow justiciability that is more harmonious with Article III goals and more likely to secure fidelity to the structural constitution.
Volume 99
Ten Things the 2012–13 Term Tells Us About the Roberts Court
During the 2012–13 Term, the Court decided seventy-eight cases on the merits, an increase from the previous Term (when there were seventy-five such opinions), but still far fewer decisions than some years earlier. Almost half (49%) of the 2012–13 Term’s cases were unanimous. Harmony was not, however, the Court’s predominant mood. Nearly a third of the cases (29%) were decided by votes of 5-4—an increase of 9% from the previous Term. Another 8% of cases were decided 6-3. As has been true in previous Terms, Justice Kennedy was most often in the majority (91% of all cases and 83% in divided cases). The figures on agreement among various Justices are a bit more surprising. In prior years, we had seen the highest rate of agreement to be among pairs of Justices on the Court’s right. In the 2012–13 Term, however, it was the trio of female Justices—Ginsburg, Sotomayor, and Kagan—who most often agreed. Justice Kagan agreed with her sister Justices in 96% of cases, and Sotomayor and Ginsburg were in agreement in 94% of cases.
What does the 2012–13 Term tell us about the Roberts Court? No one Term can reveal the whole story, of course. But I venture a few observations. I style them as “Ten Things the 2012–13 Term Tells Us About the Roberts Court.”