Justice Scalia’s Other Standing Legacy

Abstract

Scholars have written volumes about Justice Scalia’s decision in Lujan v. Defenders of Wildlife and other private-party standing cases. But another line of opinions may prove, in the long run, to be equally significant. Justice Scalia was also (indeed, perhaps more) skeptical about a different type of litigant: government institutions. Today, that skepticism has a great deal to teach us, because intergovernmental litigation is on the rise. States have sued the federal government over environmental and immigration policy; the House of Representatives has taken on the federal executive over health care and same-sex marriage; and a state legislature sued another state institution over control of electoral districts. This Essay argues that Justice Scalia was right to be concerned about such intergovernmental litigation, albeit for somewhat different reasons than the Justice articulated. The rise of “government v. government” lawsuits reflects two related (and troubling) developments in our constitutional scheme of separated powers: a decline in faith in the political process, and a corresponding increase in reliance on the federal judiciary to resolve controversial issues. The Essay further suggests that, to the extent these trends continue, there may be troubling long-term implications for the federal courts.