Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Four – Standing

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

Today, the Senate Judiciary Committee will begin its consideration of Judge Neil Gorsuch’s nomination to the Supreme Court.  The first day of the hearing will include detailed opening statements by all Senators on the Committee, as well as the individuals introducing the nominee, and Gorsuch himself.[1]  In their statements, Senators will likely reference the U.S. Constitution, the importance of the Supreme Court, and their view on the proper role of a judge.  They may also reference the failed nomination of Judge Merrick Garland, as well as hot-button legal issues, including the constitutional right to privacy, the scope of the Second Amendment, and the government’s ability to regulate money in politics.  However, there is one important legal concept that is unlikely to be addressed: standing.

While standing, and its related doctrines of ripeness and mootness draw little attention in the media, they are nonetheless crucial for litigants.  Article III of the Constitution requires any person filing suit to meet three requirements to have standing to sue.[2]  They must have suffered an “injury in fact,” the injury must be causally connected to the offending conduct, and the injury must be “redressable” by the court.[3]  When these requirements are interpreted narrowly, plaintiffs can find themselves unable to access courts to protect their rights.  When they are interpreted broadly, courts can be overburdened with vexatious litigation.[4]  As such, Gorsuch’s views on standing will have an important impact on access to courts across the country.

Gorsuch’s Record on Standing

Determining Gorsuch’s views on standing is difficult given the relatively few opinions on the subject he has written.  While Gorsuch has voted numerous times to reject plaintiffs’ claims of standing in civil cases, many of these opinions are brief and unpublished.[5]  However, the handful of cases in which Gorsuch analyzes standing suggest that he takes a relatively narrow interpretation of the doctrine.

In re Krause involved a government suit against a Chapter 7 debtor, seeking a tax lien against assets fraudulently hidden in trusts.[6]  Among other claims, Gorsuch rejected a challenge by the debtor’s children to the government action, arguing that they lacked “prudential standing.”[7]  In ruling so, Gorsuch notes that, while the amended bankruptcy code no longer restricts standing to “persons aggrieved” in bankruptcy proceedings, courts can adopt a stricter standard for policy reasons.[8]  Specifically, Gorsuch notes:

“…without such a requirement [of prudential standing], bankruptcy litigation could easily ‘become mired in endless appeals brought by a myriad of parties who are indirectly affected by every bankruptcy court order.’”[9]

In another case, Gorsuch rejected, on standing grounds, a suit against a defendant who engaged in fraudulent financial schemes by the shareholders in an injured corporation; Judge Gorsuch specifically argued that the corporation itself is the only entity given statutory standing by Colorado law.[10]

However, Gorsuch has also found that standing has been met in one notable case.  Writing for a majority of six judges in an en banc case, Gorsuch ruled that Indian tribes who are required to undergo a second round of state permitting before mining on their property have suffered an “injury in fact” sufficient to give them standing.[11]  In his opinion, Gorsuch rejected government arguments to the contrary, stating that a second round of state permitting would impose “additional administrative costs” on the tribes, thereby injuring them.[12]

Gorsuch’s Record on Ripeness and Mootness

The twin doctrines of ripeness and mootness work alongside standing to ensure that federal courts address only “cases and controversies.”.  A case is ripe for judicial review when it is “appropriate for th[e] case to be litigated in federal court by these parties at this time.”[13] Gorsuch has a relatively thin record on addressing ripeness issues.  In United States v. Pope, Gorsuch rejected a Second Amendment challenge to a conviction for possession of a gun brought by the defendant, arguing that the challenge was not ripe for judicial review.[14]  Specifically, Gorsuch noted that “the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.”[15]  As such, Gorsuch states, the resolution of his claim must wait until the conclusion of the criminal trial.

A case is moot where the court is unable to redress the plaintiff’s injury, even if the injury was redressable when the suit began.[16]  For his part, while Gorsuch has not been hesitant in dismissing cases as moot,[17] he has also been willing to rejected mootness arguments and keep cases alive.  In one case, Gorsuch sided with abortion rights groups challenging a licensing scheme in Oklahoma permitting residents to place a “Choose Life” message on their license plates, while imposing more onerous requirements on pro-choice messages.[18]  In siding with the abortion rights groups, Gorsuch emphasized that the state’s revision of its licensing process to permit pro-choice messages did not “moot” the proceedings, because the process still imposed a viewpoint-based burden.[19]  In another case, Gorsuch held that the parents of a disabled child could bring suit against a school district under the Individuals with Disabilities Education Act (IDEA) and that the suit was not mooted by the child’s aging out of the school system.[20]

Overall Assessment

Over the last thirty years, the Supreme Court has interpreted standing doctrines narrowly, making it more difficult for plaintiffs to find their way into court, while allowing the Court to avoid ruling on the merits of potentially controversial issues.[21]  The Court has also narrowed the use of taxpayer-standing allowing citizens to challenge unconstitutional actions by the government.[22]  So far, there is nothing in Gorsuch’s record suggesting that he would halt or reverse this trend.

Nevertheless, while the standing doctrine isn’t as newsworthy as other issues that the Supreme Court addresses, it is deeply important.  It allows Justices to avoid ruling on the merits of a case, which serves as an important check on judicial power–but also means that plaintiffs are left with no remedy despite claims of injuries or rights violations.  As such, Senators should ask Gorsuch to further flesh out his views on standing.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.


[1] Ed Whelan, The Gorsuch Hearing: Nuts and Bolts, Nat’l. Review, Mar. 17, 2017, http://www.nationalreview.com/bench-memos/445871/gorsuch-hearing-logistics.

[2] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

[3] Id. at 560-61.

[4] Additionally, some commentators accuse judges of using standing issues to avoid addressing the merits of cases.  See, e.g., Gene Nichol, Rethinking Standing, 72 Cal. L. Rev. 68 (1984). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol72/iss1/2.

[5] See, e.g., Rader v. C.I.R., 616 F. App’x 391 (10th Cir. 2015) (rejecting plaintiff’s standing to appeal for failure to allege any personal or direct injury); Muathe v. Fifth Third Bank, 627 F. App’x 732, 734 (10th Cir. 2015) (rejecting standing where plaintiff only alleges harm to nonparties); Backcountry Hunters & Anglers v. U.S. Forest Serv., 612 F. App’x 934, 935–36 (10th Cir. 2015) (rejecting standing for lack of redressability); DeMillard v. No Named Defendant, 407 F. App’x 332, 333 (10th Cir. 2011) (holding that private citizens do not have standing to demand the prosecution of others); Travis v. Park City Police Dep’t, 277 F. App’x 829, 830 (10th Cir. 2008) (rejecting standing in First Amendment challenge to city ordinance where plaintiff does not have any intention of violating the ordinance); Heller v. Quovadx, Inc., 245 F. App’x 839, 840 (10th Cir. 2007) (rejecting plaintiff’s standing to challenge settlement agreement).  Cf. United States v. Castro, 225 F. App’x 755, 757 (10th Cir. 2007) (rejecting criminal defendant’s standing to challenge search of his ex-girlfriend’s apartment).

[6] In re Krause, 637 F.3d 1160, 1162-63 (10th Cir. 2011)

[7] Id. at 1168.

[8] Id.

[9] Id. 

[10] Niemi v. Lasshofer, 728 F.3d 1252, 1261 (10th Cir. 2013).

[11] Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131, 1144-45 (10th Cir. 2010).

[12] Id. at 1145.

[13] Nat’l Advert. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005).

[14] United States v. Pope, 613 F.3d 1255, 1258 (10th Cir. 2010).

[15] Id. at 1257.

[16] Shawnee Tribe v. United States, 423 F.3d 1204, 1212 (10th Cir. 2005).

[17] See, e.g., Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1247 (10th Cir. 2009) (“Because no such questions remain in this case, we dismiss this appeal as moot, vacate the judgment of the district court, and remand with instructions to dismiss the case for lack of subject matter jurisdiction.”).

[18] Hill v. Kemp, 478 F.3d 1236, 1243 (10th Cir. 2007).

[19] Id. (“[The state’s action] does not diminish the fact that a difference arguably preferring one competing viewpoint over another remains bedded in Oklahoma law.”).

[20] Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1123 (10th Cir. 2008).

[21] See, e.g., Hollingsworth v. Perry, 570 U.S. __, 133 S. Ct. 2652 (2013) (holding that proponents of ballot measure lacked standing from the measure’s defeat in federal court and, as such, could not appeal the decision).  See also Clapper v. Amnesty Int’l, 568 U.S. __ (2013) (holding that Amnesty International does not have standing to challenge provisions of the Foreign Intelligence Surveillance Act).

[22] See Hein v. Freedom From Religion Found., 551 U.S. 587 (2007) (holding that taxpayers did not have standing to challenge unconstitutional expenditures made by the Executive Branch).

1 Comment

  1. Pingback: Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Seven – En Banc Decisions | The Vetting Room

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s