The Lawlessness of Standing

Abstract: In Clapper v. Amnesty International, the Supreme Court ruled that lawyers and journalists do not have standing to challenge government warrantless wiretapping of international correspondence under the 2008 amendments to FISA. The Court refused to recognize the increased costs of protecting confidential communications as injuries-in-fact unless surveillance is “certainly impending.” But more tellingly, the plaintiffs did not even allege the real injury at stake—the loss of a reasonable expectation of privacy for groups the government targets. The standing doctrine forces parties and courts to reason insincerely and blocks potentially meritorious lawsuits. Although there have been proposals to reform the standing doctrine, courts say that the Constitution requires it. The constitutional justifications advanced do not withstand scrutiny. Scholars and courts justify constitutional standing doctrine in terms of separation of powers and the ability to waive one’s rights. Both justifications are rooted in the countermajoritarian difficulty, which posits that in a democracy, courts cannot legitimately interfere with majority rule except to protect minority rights. Both justifications fail because each confuses the preferences of the majority with democracy. To the contrary, democracy also requires the rule of law, which is predicated on principled adjudication independent of majority preferences. Thus, the bare invocation of majority rule is not sufficient to justify the constitutional standing doctrine