Justiciability and Social Choice

California Law Review VOL. 83 DECEMBER 1995 No. 6 Copyright © 1995 by California Law Review, Inc. Standing Back from the Forest: Justiciability and Social Choice Maxwell L. Stearnst In this Article, ProfessorStearns employs the theory of social choice to present a comprehensive analysis of standing and the closely related doctrine of stare decisis. ProfessorStearns begins by demonstrating that the Supreme Court, along with all appellate courts, is subject to a phenomenon referred to in the social choice literature as cycling, in which for any pro- posed outcome in a given case or across cases, an alternative exists that has majority support. ProfessorStearns then demonstrates that stare decisis is the social choice equivalent of a prohibition on motionsfor reconsid- eration of defeated alternatives, a common cycle-prevention technique, and that stare decisis presumptively prevents Supreme Courtjustices from tak- ing the requisite number ofpairwise contests over time and across cases to reveal cyclical preferences. In turn, stare decisis enhances the stability of Supreme Court case law. While stare decisis improves the rationality of Supreme Court decisionmaking, it also produces an unintended and delete- rious byproduct. With stare decisis in place, the evolution of Supreme Court doctrine will depend, to a large extent, upon the order in which cases are presented or, in the language of social choice, will be "path depen- Copyright 0 1995 California Law Review, Inc. t Associate Professor, George Mason University School of Law. B.A. 1983, University of Pennsylvania; J.D. 1987, University of Virginia. I would like to thank the following for their helpful comments and suggestions: Lawrence Baxter, Dan Burk, Jim Chen, Lloyd Cohen, Bruce Johnsen, Bruce Kobayashi, Lewis Komhauser, Nelson Lund, Henry Manne, Geoffrey Miller, Timothy Muris, Jeffrey Parker, Larry Ribstein, John Rogers, Linda Schwartzstein, and David Skeel. I would also like to thank the participants in the GMUSL brown bag lunch series for their helpful comments, the GMUSL library staff for their assistance in helping to track down hard-to-find source materials, and Melissa Austin and William Crowley for their research assistance. In addition, I would like to acknowledge the generous funding provided through the Law and Economics Center of the George Mason University School of Law. Finally, I would like to thank the editors of the California Law Review and the University of Pennsylvania Law Review for their fine work and their cooperative efforts on this two- article project. 1309 1310 CALIFORNIA LAW REVIEW [Vol. 83:1309 dent. " Stare decisis thus provides interest groups with strong incentives to manipulate the order in which cases are brought before the Supreme Court and lower federal courts. Professor Stearns further demonstrates that the standing cases, which can be restated as a set of three substantive legal rules-no right to enforce the rights of others, no right to prevent diffuse harms, and no right to an undistorted market-substantiallyameliorate the problem that stare decisis creates. These standing ground rules do so by presumptively preventing ideological litigants from opportunistically manipulatingthe critically importantpath of case decisions in the Supreme Court and in lower federal courts. ProfessorStearns then links the standing rules to the Arrovian fairness criteria, which are grounded in the majoritarian norm, concluding that while stare decisis improves the Supreme Court's overall rationality,standing improves the Court's overall fairness. Professor Stearns further provides a social choice explanation, consistent with his thesis on standing,for the Supreme Court'spower of docket control andfor adherence to stare decisis within, but not among, federal circuit courts. In the companion article,Standing and Social Choice: HistoricalEvi- dence, 144 U P4. 1. RE;. 309 (1995), which the final part of this Article previews, Professor Stearns provides comprehensive historical and case support to demonstrate that the thesis set out in this Article is more robust than are alternative theories of standing, including political explanations. He also demonstrates the manner in which the functions that the standing doctrine has served have changed over time. Professor Stearns posits that the liberalNew Deal Court conceived and employed standing to discipline conservative lower federal courts, rather than to prevent itself from addressingthe merits of challenges to New Deal initiatives, as is commonly believed. He then demonstrates that the later, more conservative, Burger andRehnquist Courts were uniquely multipeaked. As a result, those Courts transformed standing from its New Deal roots into the substantive set of ground rules described above in an effort to render ideologicalpath manipulation more difficult. TABLE OF CONTENTS Introduction ..................................................... 1311 A. The Big Red Dot ....................................... 1311 B. Overview and Thesis .................................... 1317 C. The Legal and Conceptual Origins of Standing ........... 1320 I. The Theory of Social Choice ................................ 1329 A. The Condorcet Paradox, Stare Decisis, and Path Dependency ............................................ 1329 B. Standing in the Path of Agenda Manipulation ............. 1350 C. Arrow's Theorem, Unipeaked Preferences, and the Power of Inertia ............................................... 1367 1. R ange ............................................... 1368 1995] STAADENG BACK FROM THE FOREST 1311 2. Universal Domain ................................... 1370 3. Unanimity and Independence of Irrelevant Alternatives ......................................... 1371 4. Nondictatorship ..................................... 1384 II. Congress, the Power of Inertia, and Criminal Procedure ....... 1386 A. Mistretta, Casey, and the Elusive Distinction Between Adjudication and Legislation ............................ 1386 B. True Penumbras and the Bill of Rights: The Independence of Standing from Cause of Action, Ripeness, and M ootness ............................................... 1393 Il. Standing Case Categorization: A Prelude ..................... 1401 A. No Right to Enforce the Rights of Others ................ 1405 B. No Right to Prevent Diffuse Harms ...................... 1406 C. No Right to an Undistorted Market ...................... 1407 Conclusion ...................................................... 1412 INTRODUCTION A. The Big Red Dot While Charlottesville, Virginia is properly revered by many as both an historical tourist attraction and a charming college town, with the exception of its two widely visited presidential homes, Monticello and Highland,1 it is not particularly well known for its museums. Perhaps for that reason, I was less upset than was my friend when, during the fall of my third year of law school, my long-planned weekend visit to New York City was visited with constant rain. Although displaying no enthusiasm, my friend was willing to indulge me when I suggested that we visit the Whitney Museum, which is located on the Upper East Side and features modem and contemporary American art. Upon entering, I noticed that a tour was about to begin. Because I did not know much about modem art, I suggested that we join. The tour guide first brought us to a painting that covered a large wall. The backdrop was completely white and in the center was a big red dot, several feet in diameter. My friend and I looked at each other, somewhat bewildered, as the tour guide led us to the next painting without saying a word. The next painting was the same size, again with a completely white background, but, instead of having one big red dot in the center, it had two somewhat smaller red dots, the first slightly to the upper right of center and the second slightly to the lower left of center. I had begun to question my choice of activity when the tour guide silently brought us to yet another wall-size painting. This one was a single frame comic strip. Stepping closer to the painting, I could see that it consisted entirely of painted dots in 1. Highland, also knov as Ash Lavm, was James Monroe's home and Monticello was, of course, the home of Thomas Jefferson. 1312 CALIFORNIA LAW REVIEW [Vol. 83:1309 various colors. Standing farther back, the dots blurred and a meaningful image emerged. The tour guide explained that if we walked right up to the wall-size comic strip, we would, depending upon how close we got, see some version of the second painting that she had shown us, depicting two colored dots against a plain white background. If we got closer still, we would again see the first painting that she had shown us, depicting a single colored dot against a solid white background. The tour guide then explained that the artists who created the first two paintings intended them to be statements on perspective. While neither of those paintings depicts a particularly meaningful image, that is only because the artist has rather cleverly forced us to stand too close. As the third painting demonstrated, however, when the artist permits us to stand farther back, a very meaningful image emerges, even though it, like the first two paintings, is composed entirely of painted dots against a white background. Before I teach the standing doctrine in my introductory course in Constitutional Law, I tell my story about the Whitney Museum. The tour guide's analysis is, of course, as significant for jurisprudence as it is

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