Justice Antonin Scalia’s legacy is often discussed in terms of his views on hot-button issues, such as gun control, campaign-finance regulation, abortion, LBGT rights, and the role of race in American law. But there’s one extremely important area of Scalia’s legacy that has been largely ignored since his death: access to the courts. This is where Scalia had perhaps his greatest impact, writing or joining opinions that radically changed the law in a way that made it harder for individuals to have their day in court to vindicate their federal rights.
In Article III, the U.S. Constitution establishes an independent federal judiciary with the power to hear all cases “arising under this Constitution, the laws of the United States, and treaties made...under their authority.” As John Marshall’s Supreme Court wrote nearly two centuries ago, this language authorizes the “judicial department” to “decide all cases of every description, arising under the Constitution and laws of the United States,” giving to the federal courts “the power of construing the Constitution and laws of the Union in every case” and “preserving them from all violation from every quarter.”
In some areas of the law—such as the scope of the right to bear arms, limits on campaign finance, or the protection of property rights—Scalia took a broad view of the Constitution’s text. But on the question of who should be able to argue before the courts, he did not. Article III’s use of the word “cases,” he argued, means a plaintiff must prove that he or she suffered a concrete injury to establish standing to sue; this imposed substantial restrictions on the power of Congress to permit individuals to sue in court.
Throughout his career, Scalia argued that limits on the right to sue were a core aspect of the separation of powers. He worried that without strict standing requirements, courts would intrude into the domain of the political branches. Scalia was particularly concerned that courts were making it too easy for individuals and advocacy groups—such as defenders of the environment, consumer groups, and others—to challenge administrative action. Scalia’s answer was to insist on concrete injury as the “indispensable prerequisite of standing.” Only that, Scalia insisted, would keep courts to what he saw as their properly limited role and prevent what he called “an overjudicialization of the processes of self-governance.”
Scalia’s views about standing—spelled out in a famous 1983 lecture—shaped the law even before he joined the Supreme Court. In a backlash to the Warren Court of the 1950s and ’60s , the conservative justices on the Burger Court drew on Scalia’s views, making it harder for racial minorities, victims of police misconduct, and others to vindicate their constitutional rights and challenge abuse of power by the government. As Gene Nichol observed long ago, the Burger Court turned to standing doctrine to “fence out disfavored claims,” repeatedly invoking the “toughest standing hurdles” in cases in which racial minorities had been victimized by the government. As a result, individuals who had previously turned to the courts to remedy systemic injustices—whether housing discrimination or the use of chokeholds by the police—were thrown out of court.
After joining the Court in 1986, Scalia worked to extend these rulings. In 1992, in Lujan v. Defenders of Wildlife, Scalia’s majority opinion rewrote the law of standing, and, for the first time in the nation’s history, struck down as unconstitutional a federal statute that gave citizens a right to go to court to enforce federal legal protections. In Lujan and the cases that followed it, Scalia argued that the Constitution strictly limits Congress’s authority to give individuals a right to sue to enforce federal rights, insisting on proof of a concrete injury as “an essential and unchanging part of the case-or-controversy requirement of Article III.”
Scalia’s views did not carry the day in every standing case—in a host of rulings that expanded the power of Congress to grant standing, he bitterly dissented. But he succeeded in making it harder for individuals to have their day in court to vindicate their federal rights. In 2013, in Clapper v. Amnesty International, Scalia joined a 5-to-4 ruling that threw out a lawsuit challenging the federal government’s program of warrantless wiretapping as unconstitutional. Samuel Alito’s majority opinion explained that the “law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Scalia had been championing this basic argument for decades.
Scalia was the leading voice for restricting access to the federal courts in other ways as well. His vision of the role of the federal courts was at the heart of numerous 5-to-4 decisions that narrowed federal laws and court rules in a way that closed the courthouse doors to injured plaintiffs. Scalia’s opinions have made it harder for individuals to sue to enforce federal civil-rights laws or bring class-action suits against corporations accused of violating federal rights. His opinions have given corporations the power to force consumers and employees to have their legal claims resolved through arbitration—in which claims against the company will be made by a decision-maker chosen by the company—rather than have their day in court.
Scalia’s narrow vision of the role of the courts is hard to square with the originalist methodology he so passionately championed. The courts were central to the framers’ constitutional design. Article III was written to avoid the failures of the Articles of Confederation, under which federal laws were effectively unenforceable. In the framers’ conception of separation of powers, the courts had a critical checking function, preventing abuse of power and ensuring that governments obeyed constitutional limits. As John Marshall observed, “To what quarter will you look for infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.”
The Supreme Court is currently stalled on the question of access to courts, and sharply divided. Last term’s big standing case—Spokeo, Inc. v. Robins, in which a data mining company, supported by the U.S. Chamber of Commerce and a host of conservative legal groups, argued that Congress lacked the power to give consumers a right to sue over false dissemination of consumer-credit information—ended with a whimper. Spokeo had based its arguments on an aggressive reading of Scalia’s opinion in Lujan, but after Scalia’s death, the eight remaining justices struggled to decide the big questions in the case, resolving it on extremely narrow grounds. The justices will tackle standing again next year in another major case, Bank of America Corp. v. City of Miami. They agreed to decide whether the City of Miami can sue big banks under the Fair Housing Act for a host of discriminatory lending practices. Municipal standing to enforce fair-housing laws has long been recognized. If the Court were to change that, banks in Florida that have allegedly targeted minorities with predatory loan offers might escape accountability for their actions.
All too often, the Court’s standing jurisprudence has been at its strictest when courts are asked to redress harms to racial minorities and others not likely to prevail in the political process. The Bank of America case tests whether courts will help break down—or compound—the housing discrimination that harms minority communities and the cities in which they live.
Access to courts may not grab attention in the same way that issues such as guns, abortion, or affirmative action do, but it forms the foundation of the rule of law. How this law changes after Scalia will determine whether minorities victimized by the government, consumers threatened by corporate power, and others will have the right to go to court to redress violations of their rights. The vitality of the Constitution and federal law depends on ensuring that individuals have their day in court to vindicate their legal rights and prevent the abuse of power.