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https://doi.org/10.1017/S0003055400265234
COMMUNICATIONS
Standing to Sue Updated
TO THE EDITOR:
I think it worthwhile to bring my article
"Standing to Sue: Interest Group Conflict in
the Federal Courts" (APSR, September, 1976)
up to date, especially in light of two recent
cases decided by the Supreme Court, Warth v.
Seldin and Simon v. Eastern Kentucky Welfare
Rights Organization.1
In so far as the essay pertained to conflict in
the judicial forum between private groups, and
in particular to cases in which groups seek to
forestall actions by corporate business, the
argument remains intact. Courts have continued
to enlarge on the substantive standing test in
force from Data Processing to enable environmentalists, consumers, and others to press their
suits against a wide range of projects. Since
Warth, Courts have recognized some new varieties of injuries-in-fact (e.g., "the risk that
serious environmental impacts will be overlooked"); and they have further extended
requisite zones of interest (e.g., socioeconomic
impacts such as increased problems of fire and
police protection and higher tax rates are
protected by the National Environmental
Policy Act). Organizations continue their postSierra Club representations: remarks one judge,
after members of an unincorporated group
without by-laws are deposed by defendants and
shown to disagree about the purposes of the
suit: "I am troubled by the lack of unity and
substance of this organization. However, some
members of Concerned Citizens live, work, and
spend leisure time in Umtillo County. They
meet the Warth standing test." 2
In Warth v. Seldin, a divided Court denied an
array of organizational plaintiffs standing to
challenge local zoning ordinances that the
Court acknowledges had the effect of excluding low-income and minority residents. The
opinion is complex, shifting from one set of
criteria and facts to eliminate one plaintiff, to
»422 US 490 (1975); 426 US 26 (1976).
Qty of Davis v. Coleman, 5 ERL 20635 (1975);
McDowell v. Schlesinger, 6 ERL 20225 (1976); Pott
of Astoria v. Hodel, 5 ERL 20658 (1975). These cases
are picked from literally scores of recent examples.
2
another set to eliminate the next; it concerns
Article III standing rather than standing under
the Administrative Procedures Act; and zoning
is a peculiarly local matter. Nevertheless, the
opinion does indicate an insistence on an injury
which (1) is demonstrably an effect of the
alleged infraction of law, and (2) may be
afforded relief by the Court's action. The
economics of the housing market, and not
merely the zoning policy, is said to be responsible for plaintiffs' problems.
These requirements for injury-in-fact are
reiterated in Simon v. Eastern Kentucky Welfare Rights Organization, where the Court
dismissed as "speculative at best" the claim that
indigents denied care by nonprofit hospitals
have been harmed by an IRS ruling removing
tax incentives to provide such care, and therefore have no standing under the Administrative
Procedures Act. The Court in its opinion
explicitly upholds S.C.R.A.P., claiming the
plaintiffs there would have met the tests of
causation and efficacy-of-relief. Resisting the
temptation to agree with Justice Brennan's
dissent in Warth, that the decisions of these
cases can be explained only by a hostility to the
claim on the merits, I might venture a distinction which squares with these decisions and
leaves private defendants still vulnerable to
challenges through the previously liberalized
law of standing. For in these recent cases the
Court rejects the argument of some social
might-have-been in the absence of official behavior: minority residents would still have been
excluded without the zoning; hospitals might
not have given indigents care without the tax
ruling. But anticorporation groups usually seek
to stop or modify some specific, concrete
project. Thus, the lower courts, based on
Warth, denied standing for minority and other
groups who claimed to be injured by H.U.D.'s
granting funds for sewage and recreational
improvements without due regard to the recipient town's exclusionary zoning ordinances;
and, based on Simon, found standing for an
organization of farm workers and farmers seeking to force corporate landlords to sell off
certain excess lands, in accordance with reclamation laws.3 There is no question, however,
1044
3
NAACP v. FPC, 425 US 662 (1976).
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https://doi.org/10.1017/S0003055400265234
1977
Communications
that the majority on the Court is groping
toward a more restrictive role for the judiciary
in social conflict, and until their approach
moves beyond the invocations of prudence in
Warth and is anchored in clearer doctrine, any
such prognosis must be, as Justice Powell might
say, speculative at best.
One final point. Federal judges generally
will, without raising questions of standing,
allow parties who have participated in agency
proceedings to challenge administrative rulings
in Court. For example, the Supreme Court
recently reviewed a ruling by the FPC that the
Commission was not required by its legislative
mandate ("in the public interest") to bring
about equal employment in utility companies,
contrary to the petition of the NAACP.4 While
upholding the ruling, a "loss" for the NAACP,
the Court went on to say that the FPC must
make certain that consumers are not required
to absorb any costs of strikes, boycotts, loss of
contracts, or other effects of compliance or
noncompliance with the antidiscrimination
statutes — thereby putting a new subject matter
on the regulatory agenda and paving the way
for future challenges to utility companies. No
issue of standing was raised. In the last couple
of years the agencies themselves, in part because of prodding by the judiciary, have become relatively relaxed about what parties and
organizations they will hear; indeed some are
already in the business of financing witnesses to
come before them. It is possible that even
though the law of standing is tightened, a
variety of groups, some with broad-gauge social
claims like the NAACP, will reach the courtroom by the administrative route. Moreover,
since this Court seems to want to restrain itself
from overturning judgments made in the other
branches, it would appear also bound to defer
to the agencies' determination of who is a
proper party at interest. While in such circumstances judges' discretion will in this limited
sense have been trimmed, all of the dilemmas of
interest group litigation discussed in "Standing
to Sue" persist.
1045
John Locke:
Problems and Perspectives
To THE EDITOR:
In his fine review of John Locke: Problems
and Perspectives (APSR, September 1975),
Robert H. Horwitz says the following of Hans
Aarsleff's contribution to this collection of
Locke studies: "But what is the status of
Eternal Salvation [which is required for divine
justice to be effectual] in Locke'$ teaching?
Aarsleff's inspiring interpretation depends decisively on whether Locke has demonstrated
the immortality of the soul. Unfortunately,
according to Locke, its demonstration is beyond the capacity of human reason." (The
classic argument in this vein is to be found in
Leo Strauss's Natural Right and History, pp.
203 ff.: "[Locke] says, on the one hand, that,
in order to be a law, the law of nature must not
only have been given by God, but it must in
addition have as its sanctions divine 'rewards
and punishments,' of infinite weight and duration, in another life. On the other hand,
however, he says that reason cannot demonstrate that there is another life. Only through
revelation do we know of the sanctions for the
law of nature or of 'the only true touchstone of
moral rectitude.'") Horwitz, agreeing with if
not necessarily following Strauss, goes on to
suggest that "Aarsleff appears to help Locke
overcome the critical question of the immortality of the soul through nothing less than
an act of faith: 'Absolute proof of the nonexistence of a future state is not to be had,
consequently the knowledge of the mere probability of a future state with rewards and
punishments is that which must direct our
search for happiness.' "
Now Aarsleff has not "helped" Locke in any
way, for it is Locke himself who argues (in the
Essay Concerning Human Understanding) that
"the bare possibility, which nobody can make
any doubt of," of another life governed by
divine rewards and punishments, makes it a
good bargain to conform one's voluntary acKAREN ORREN
tions to the divine law: "If the good man be in
the right, he is eternally happy; if he mistakes,
University of California, Los Angeles
he is not miserable, he feels nothing." Whatever
one may think of this argument — it has the
look of debased Pascalianism — it is Locke's
own, and not one provided by Aarsleff with a
view to "helping" Locke to overcome the
incoherence of his theory through an "act of
faith." (Ironically enough, one of the clearest
4
Evans v. Lynn 537 F.2d 571 (1975); National things in Aarsleff's interpretation of Locke is
Land For People, Inc. v. Bureau of Reclamation, 417 his careful distinction between "demonstration" and mere "probability"; since, however,
F.Supp. 449 (1976).