ARTICLE I LIMITS ON STATUTORY STANDING JOHN G. ROBERTS, JR.t Henry James wrote that "[w]e must grant the artist his subject, his idea, his donee: our criticism is applied only to what he makes of it."1 Dean Nichol and Professor Pierce lose sight of this principle in their criticism of Justice Scalia's opinion for the majority in Lujan v. Defenders of Wildlife.' One of the "donees"-the givens-in Defenders was that injury in fact is required for standing under Article III. The Court's precedents so hold,3 and none of the parties before the Court disputed the proposition. It certainly is fair to challenge this premise, and also fair to challenge the reasoning of the opinion in light of the premise. What strikes me as a bit above the odds, however, is challenging the reasoning of the opinion in light of a different premise-the premise that injury is not an Article III requirement. The result is somewhat like criticizing a person for speaking awful French, only to discover that he was in fact speaking fluent Spanish. Defenders is a sound and straightforward decision applying the Article III injury requirement. The fact that it fails as t Partner, Hogan & Hartson, Washington, D.C. The author served as Principal Deputy Solicitor General, United States Department of Justice, 1989-1993. The Office of the Solicitor General represented Secretary of the Interior Manuel Lujan before the U.S. Supreme Court in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), and the author argued Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990), on his behalf. This Comment is based on remarks presented at a symposium on Lujan v. Defend- ers of Wildlife held at Duke University School of Law on January 21, 1993. 1. Henry James, The Art of Fiction, in THE PORTABLE HENRY JAMES 387, 402-03 (Morton D. Zabel ed., 1968). 2. 112 S. Ct. 2130 (1992). 3. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) ("To establish an Art. III case or controversy, a litigant must first clearly demonstrate that he has suffered an 'injury in fact.' "); Allen v. Wright, 468 U.S. 737, 750-51 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 471-76 (1982). 1219 1220 DUKE LAW JOURNAL [Vol. 42:1219 an application of some other, non-constitutional concept of injury Dean Nichol prefers should come as no surprise. Before considering whether Defenders is "a transformation in the law of standing"4 that is "inconsistent with the principle .of judicial restraint,"5 it may be worthwhile to recall that the Supreme Court for some time has recognized standing as a constitutionally based doctrine designed to implement the Framers' concept of "the proper-and properly limited-role of the courts in a democratic society."6 The legitimacy of an unelected, life- tenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary's power in Article III to actual "cases" and "controversies." The need to resolve such an actual case or controversy provides the justification not only for judicial review over the popularly elected and accountable branches of the federal government,. but also for the exercise of judicial power itself, "which can so profoundly affect the lives, liberty, and property of those to whom it extends."' This is nothing new; the Court explained a century ago that the exercise of federal judicial power was legitimate only "as a necessity in the determination of real, earnest, and vital controversy." 9 One way federal courts ensure that they have a "real, earnest, and vital controversy" before them is by testing the plaintiff's standing to bring suit. The plaintiff must allege at the pleading stage,10 and later prove,11 an injury that is fairly traceable to the defendant's challenged conduct and that is likely to be redressed by the relief sought.12 If the plaintiff cannot do so, the court must dismiss the case as beyond its power to decide-no matter 4. Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE LJ 1141, 1142 (1993). 5. Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing As a Judicially Imposed Limit on Legislative Power, 42 DUKE LJ. 1170, 1200 (1993). 6. Allen, 468 U.S. at 750 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); see Valley Forge, 454 U.S. at 471-76. 7. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 8. Valley Forge, 454 U.S. at 473. 9. Chicago & Grand Trunk R.R. v. Wellman, 143 U.S. 339, 345 (1892), quoted in Valley Forge, 454 U.S. at 471. 10. Se, e.g., Pennell v. City of San Jose, 485 U.S. 1, 7 (1988); Warth, 422 U.S. at 501. 11. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 883 (1990); Warth, 422 U.S. at 501; United States v. SCRAP, 412 U.S. 669, 689 (1973). 12. Allen v. Wright, 468 U.S. 737, 751 (1984); Valley Forge, 454 U.S. at 472. 19931 LIMITS ON STANDING 1221 when in the litigation the flaw is discovered or arises. 13 A dis- missal on the basis of standing prevents the court from reaching and deciding the merits of the case, whether for the plaintiff or the defendant. Standing is thus properly regarded as a doctrine of judicial self-restraint."' The Defenders Court engaged in just such an exercise of judicial self-restraint, soundly based on precedent. The Court concluded that the plaintiff had failed to prove injury in fact' -- hardly a surprising result under the Court's standing precedents, given the vague and amorphous nature of ihe plaintiff's claims of injury. The Court then concluded that Congress nonetheless intended the plaintiff to have a right to sue under the statute in question. 6 Although I regard this ruling as more problematic, 7 the conclusion that so surprises Dean Nichol and Professor Pierce-that the Endangered Species Act is therefore unconstitu- tional as applied to this particular plaintiff in this particular lawsuit-follows inexorably, and is no less an act of judicial self- restraint than any other dismissal on the basis of standing. Dean Nichol first faults the Court for failing to overturn established precedent and rule that injury in fact is not, after all, a requirement of Article III. According to Dean Nichol, James Madison's statement that the federal courts would be limited to matters of "a Judiciary nature" was "obviously circular," and historical scholarship has shown that the injury requirement is not constitutionally based.19 A response to the historical scholarship is beyond the scope of this Comment.02 The Framers recognized 13. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986); cf. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 66-67 (1987) (analyzing de- velopment of lack of standing during pendency of case in terms of mootness). 14. See United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring) ("Relaxation of standing requirements is directly related to the expansion of judicial power."). This point is true whether or not the standing decision is correct in any partic- ular case. If a court errs in its standing dismissal and should have reached the merits, that court is wrong-not activist. 15. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2138 (1992). 16. IL at 2145. 17. See infra text accompanying notes 49-53. 18. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 430 (Max Farrand ed., 1966). 19. Nichol, supra note 4, at 1150-52. 20. I would note, however, that Dean Nichol's confidence in the constitutionality of qui tam actions is not universally shared. The question is currently pending before the 1222 DUKE LAW JOURNAL [Vol. 42:1219 that legislative, executive, and judicial functions were not divided into hard and fast categories, but, as Justice Scalia noted in Defenders, the "landmarks" defining the tasks of the judiciary are "less uncertain" than those delimiting the responsibilities of the other branches.21 There are landmarks-the inquiry is not circular. In any event, the objection to the Court's refusal to abandon injury as an Article III element of standing is a curious one in a discussion otherwise critical - of supposed judicial activism. The Court has recognized the constitutional nature of the injury requirement for some time, certainly before Justice Scalia's appointment to the Supreme Court.' As Dean Nichol notes, the academic community is less convinced,' but the Court is firmly committed. No party before the Court in Defenders suggested U.S. Court of Appeals for the Ninth Circuit. United States ex rel. Madden v. General Dynamics, No. CV-88-05352-WMB (C.D. Cal. filed Sept. 6, 1988), petition for permission to appeal granted, No. 92-56042 (9th Cir. Aug. 26, 1992); United States ex rel. Kelly v. The Boeing Co., No. CV-89-1732-R (W.D. Wash. filed Nov. 30, 1989), petition for per- mission to appeal granted, No. 92-3660 (9th Cir. Sept. 11, 1992). The Office of Legal Counsel of the U.S. Department of Justice has formally opined that such actions are unconstitutional. See Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. Off. Legal Counsel 249 (1989) (preliminary print). In any event, reliance on "the business of the Colonial courts and the courts of Westminster when the Constitution was framed," .Nichol, supra note 4, at 1151 (quoting Joint Anti-Fascist Refugee Comm.