Constitutional Law

New Supreme Ct case on standing

Summers v. Earth Island Institute. A quick read suggests it's no change in direction. (1) Plaintiff must challenge a specific decision, not a general policy or manner of decisionmaking; (2) Plaintiff (or its members) must show some risk of concrete risk of injury -- "I visit Forests and this sometimes happens on Forests and so I might see it" is not enough.

It's a 5-4, and a major factor in the split is that the dissent argues that a large organization should be able to argue that, given the size of its membership and the activities of its members, it's likely in general that some of them will encounter results of the policy being litigated, even if the group's attorneys cannot come up with specific member names and affidavits. (In this case, the challenge was to Forest Service sales of timber on small parcels, but thousands of them, and one of the plaintiff organizations had 700,000 members).

Justice Kennedy concurs, noting that "procedural standing" (the argument that whether or not the result harmed a person, the person had standing because the procedure used to reach the result was flawed in a way that stacked the deck against them) doesn't cut it.

Full post as published by Of Arms and the Law on March 05, 2009 (boomark / email).