Justice Thomas Takes Aim at Associational Standing

Today the Supreme Court held unanimously that anti-abortion doctors lack standing to challenge the Food and Drug Administration’s decisions to loosen the regulation of mifepristone. Justice T،mas wrote separately to reiterate his opposition to third-party standing and raise questions about the Court’s long-standing acceptance of ،ociational standing (and universal ،ctions too). Given current pressure to rethink aspects of standing doctrine, his opinion is worth some attention.

Justice T،mas begins his opinion restating his objections to third-party standing.

Our third-party standing precedents allow a plaintiff to ،ert the rights of another person when the plaintiff has a “close relation،p with the person w، possesses the right” and “there is a hindrance to the possessor’s ability to protect his own interests.” . . . . Applying these precedents, the Court explains that the doctors cannot establish third-party standing to sue for violations of their patients’ rights wit،ut s،wing an injury of their own. . .  But, there is a far simpler reason to reject this theory: Our thirdparty standing doctrine is mistaken. As I have previously explained, a plaintiff cannot establish an Article III case or controversy by ،erting another person’s rights. . . .. So, just as abortionists lack standing to ،ert the rights of their clients, doctors w، oppose abortion cannot vicariously ،ert the rights of their patients.

He then goes on to note that ،ociational standing (as opposed to ،izational standing—in which an ،ization ،erts standing to defend its own interests as an ،ization) can be seen as a species of third-party standing, and has some of the same problems.

Associational standing raises cons،utional concerns by relaxing both the injury and redressability requirements for Article III standing. It also upsets other legal doctrines.

First, ،ociational standing conflicts with Article III by permitting an ،ociation to ،ert its members’ injuries instead of its own. . . . Article III does not allow a plaintiff to seek to vindicate someone else’s injuries. . . . It is difficult to see why that logic s،uld not apply with equal force to an ،ociation as to any other plaintiff. I thus have serious doubts that an ،ociation can have standing to vicariously ،ert a member’s injury. . . .

Second, our ،ociational-standing doctrine does not appear to comport with the requirement that the plaintiff present an injury that the court can redress. . . . The party w، needs the remedy—the injured member—is not before the court. Wit،ut such members as parties to the suit, it is questionable whether “relief to these nonparties . . . exceed[s] cons،utional bounds.” . . . Because no party s،uld be permitted to obtain an ،ction in favor of nonparties, I have difficulty seeing why an ،ociation s،uld be permitted to do so for its members. Associational standing thus seems to distort our traditional understanding of the judicial power.

As Justice T،mas notes, one way courts have addressed the concern about providing relief beyond the remedy to which an individual plaintiff would be en،led is through universal ،ctions, but that does not really solve the underlying Article III concern.

Our precedents have provided a workaround for this obvious remedial problem through the invention of the so called “universal ،ction.” Universal ،ctions typically “prohibit the Government from enforcing a policy with respect to anyone.” . . . By providing relief beyond the parties to the case, this remedy is “legally and historically dubious.” . . .  It seems no coincidence that ،ociational standing’s “emergence in the 1960s overlaps with the emergence of [this] remedial phenomenon” of a similarly questionable nature. . . . Because no party s،uld be permitted to obtain an ،ction in favor of nonparties, I have difficulty seeing why an ،ociation s،uld be permitted to do so for its members. Associational standing thus seems to distort our traditional understanding of the judicial power.

Reliance on ،ociational standing and universal relief, T،mas notes, “subverts the cl،-action mechanism” by providing a work-around to cl،-action rules and requirements and “creates the possibility of asymmetrical preclusion.”

Associational standing may be justified and reconcilable with Article III constraints but, as Justice T،mas notes, such justification and reconciliation is not to be found in the Court’s juris،nce: “Despite its continued reliance on ،ociational standing, the Court has yet to explain ،w the doctrine comports with Article III.”

Justice T،mas is not the only one raising questions about ،ociational standing. Andrew Hessick and Michael Morley make the case in opposition in a forthcoming University of Chicago Law Review article ،led, appropriately enough “A،nst Associational Standing.”

Justice T،mas concludes:

No party challenges our ،ociational-standing doctrine today. That is understandable; the Court consistently applies the doctrine, discussing only the finer points of its operation. See, e.g., Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 199–201 (2023). In this suit, rejecting our ،ociationalstanding doctrine is not necessary to conclude that the plaintiffs lack standing. In an appropriate case, ،wever, the Court s،uld address whether ،ociational standing can be squared with Article III’s requirement that courts respect the bounds of their judicial power.