THE FIRST PRINCIPLES OF STANDING: 
PRIVILEGE, SYSTEM JUSTIFICATION, AND THE PREDICTABLE 

INCOHERENCE OF ARTICLE III 
 

Christian B. Sundquist
*
 

 
This Article examines the indeterminacy of standing 

doctrine by deconstructing recent desegregation, affirmative 
action, and racial profiling cases.  This examination is an 
attempt to uncover the often unstated meta-principles that 
guide standing jurisprudence.  The Article contends that the 
inherent indeterminacy of standing law can be understood as 
reflecting an unstated desire to protect racial and class 
privilege, which is accomplished through the dogma of 
individualism, equal opportunity (liberty), and “white 
innocence.”  Relying on insights from System Justification 
Theory, a burgeoning field of social psychology, the Article 
argues that the seemingly incoherent results in racial standing 
cases can be understood as unconscious attempts to preserve 
the status quo.  The Article proposes moving “beyond the 
transcendental nonsense” of standing doctrine and its 
inevitable replication of economic and racial privilege by 
completely eliminating all standing limitations to the access of 
justice. 

 
I. INTRODUCTION ............................................................................. 120 
II. STANDING DOCTRINE AND ARTICLE III ................................... 123 

A. Contemporary Justifications for the Doctrine of  

Standing............................................................................. 128 
1. Separation-of-Powers Theories .................................. 129 
2. Representational Theories ........................................... 131 

                                                                                                       
*Associate Professor of Law, Albany Law School.  J.D., Georgetown 

University Law Center.  I thank Mary Lynch, Peter Halewood, Donna Young, 
Alicia Ouellette, Nancy Ota, Stephen Clark, Maria Grahn-Farley, Keith 
Hirokawa, Ray Brescia, and Lenese Herbert for their support and advice 
during the preparation of this Article.  I am especially grateful to James Gathii 
and Anthony Farley for their invaluable comments on previous drafts of this 
Article.  I also express appreciation to my assistant Theresa Colbert and my 
research assistants Christopher Stevens and Allyson Stein for their amazing 
support. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 120 
  
 

III. THE INDETERMINACY OF STANDING DOCTRINE .................... 134 

A. Of Black Injuries, Desegregation, and Profiling ............ 135 
B. Of White Injuries, Innocence, and Merit ....................... 141 

IV. THE FIRST PRINCIPLES OF MODERN STANDING  
DOCTRINE ...................................................................................... 146 
A. Social Justification Theory, Privilege, and Threats  

to the Status Quo ................................................................. 146 
B. From the Descriptive to the Normative:  SJT, Critical 

Theory, and the Law of Standing .................................... 149 
C. The First Principles of Standing Law ............................. 154 

V. BEYOND THE “TRANSCENDENTAL NONSENSE” OF  
STANDING ...................................................................................... 156 

VI. CONCLUSION ................................................................................. 160 
 
 
I. INTRODUCTION 
 

The murky waters of standing doctrine have been criticized 
for their indeterminacy,1 political undercurrents,2 and even 
“apparent lawlessness.”3  The law of standing ostensibly seeks to 
ensure that the federal courts entertain only justiciable “cases” and 
“controversies.”4  The contemporary interpretation of the “cases” 
and “controversies” language of Article III of the United States 
Constitution borrows heavily from traditional tort concepts of 
damage and causation.  Accordingly—under the modern standing 
framework—plaintiffs must demonstrate that they have suffered an 
injury to a cognizable legal interest and that said injury was caused 
by the actions of the opposing party.5  Plaintiffs also must request 
from the court relief that is capable of redressing the claimed injury.6 

                                                                                                       
1  See, e.g., Duncan Kennedy, Form and Substance in Private Law 

Adjudication, 89 HARV. L. REV. 1685 (1976); David Kairys, Law and Politics, 52 
GEO. WASH. L. REV. 243 (1984); Gary Peller, The Metaphysics of American Law, 
73 CALIF. L. REV. 1151 (1985); Clare Dalton, An Essay in the Deconstruction of 
Contract Doctrine, 94 YALE L. J. 997 (1985); Joseph William Singer, The Player and 
the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984). 

2  Richard J. Pierce, Is Standing Law or Politics?, 77 N.C. L. REV. 1741 
(1999). 

3  William Fletcher, The Structure of Standing, 98 YALE L.J. 221, 223 
(1988). 

4  U.S. Const. art. III. 
5  See, e.g., Valley Forge Christian Coll. v. Am. United for Separation 

of Church & State, Inc., 454 U.S. 464, 472 (1982). 
6  Id. at 475.  



  
121 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

The seemingly clear and orderly tripartite framework of 
Article III standing doctrine nonetheless has spawned widespread 
and consistent uncertainty.7  Theoretical justifications for standing 
doctrine are largely inadequate to reconcile conflicting judicial 
interpretations of Article III.  These theories often rely on an 
incoherent adherence to a private rights framework for adjudication.  
The current content of standing law simply cannot be rationalized 
by reference to classic representational or separation-of-powers 
theories. 

What, then, guides the content and meaning of modern 
standing law?  How can one reconcile disparate judicial 
interpretations of the meaning of Article III standing doctrine when 
structural and constitutional arguments fail?  This Article argues that 
the inherent indeterminacy of standing law can be understood as 
reflecting an unstated desire to protect racial and class privilege, 
which is accomplished through the dogma of individualism, equal 
opportunity (liberty), and “white innocence.”  Relying on insights 
from System Justification Theory (SJT), a well-respected field of 
social psychology, this Article argues that the seemingly incoherent 
results in racial standing cases can be understood as (perhaps) 
unconscious attempts to preserve the status quo.  The Article 
proposes moving “beyond the transcendental nonsense”8 of 
standing doctrine, and its inevitable replication of economic and 
racial privilege, by completely eliminating all standing limitations to 
the access of justice.  

Part II of this Article will recount the historical genesis of 
standing doctrine while examining the Court‟s contemporary 
interpretation of the standing requirements of Article III.  For nearly 
a quarter of a century following the creation of Article III, the 
“cases” and “controversies” language of Article III was not 
interpreted by the courts as imposing any restrictions on 
justiciability.  Rather, federal review of cases was governed solely by 
the existence of a substantive cause of action. 

                                                                                                       
7  See Flast v. Cohen, 392 U.S. 83, 99 (1968) (Harlan, J., dissenting) 

(describing standing doctrine as “one of the most amorphous [concepts] in the 
entire domain of public law”) (citation omitted); Heather Elliot, The Functions of 
Standing, 61 STAN. L. REV. 459, 466 (2008) (“Such unpredictability has 
generated extensive controversy.  Critics have argued that the doctrine is 
„incoherent,‟ is „manipulable‟ and permeated with „doctrinal confusion‟ . . . . ”) 
(citations omitted). 

8  Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 
COLUM. L. REV. 809, 812 (1935). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 122 
  
 

This section also will review and critique the prominent 
theoretical and constitutional defenses of Article III standing 
doctrine. The modern interpretation of the “cases” and 
“controversies” language of Article III as requiring a showing of 
injury-in-fact, causation, and redressability is defended largely on 
separation-of-powers and representational grounds.  Part II asserts 
that the current standing framework does not protect “stakeholder” 
plaintiffs,9 despite widely-held beliefs that representational theories 
ensure that the judicial process is sufficiently representative of the 
body politic.10 

Part III of this Article will examine the indeterminate nature 
of modern standing doctrine.  In particular, this section will examine 
the Court‟s recent standing jurisprudence in the desegregation, 
affirmative action, racial discrimination, and racial profiling contexts 
in order to illustrate the unworkable application of contemporary 
standing requirements. 

Part IV of this Article addresses the seemingly irreconcilable 
conflict between the Court‟s broad interpretation of Article III 
“injury” in cases that are hostile to desegregation and affirmative 
action efforts with the overly restrictive conception of “injury” 
applied in cases that seek to promote racial integration or redress 
racial discrimination.  The section relies heavily on insights from SJT 
to explain how the indeterminacy of standing doctrine can be 
explained only by an unstated desire to protect racial and class 
privilege.  SJT demonstrates that the Court is cognitively motivated 
to respond to perceived threats to the status quo by rationalizing the 
existence of social and racial inequality. 

The final section of this Article advocates moving “beyond 
the transcendental nonsense”11 of standing and its inevitable 
replication of economic and racial privilege.  The Court must 
eliminate all vestiges of the current standing framework in order to 
remove what has proven to be one of the principal barriers to social 
justice. 

 

                                                                                                       
9  This term, in a standing context, is used to refer to those who stand 

to gain something or suffer an injury-in-fact as the result of a lawsuit—those 
who have a direct stake in the litigation‟s outcome. 

10  Lea Brilmayer, The Jurisprudence of Article III:  Perspectives on the “Case 
or Controversy” Requirement, 93 HARV. L. REV. 297 (1979). 

11  Cohen, supra note 8, at 812. 



  
123 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

II. STANDING DOCTRINE AND ARTICLE III 
 

The ubiquitous “cases” and “controversies” language of 
Article III has long been relied upon by the Court to legitimize the 
narrowing of federal court jurisdiction.12  The Court has argued that 
those terms impose strict constitutional limits on federal judicial 
review and that federal courts lack jurisdiction over cases where the 
plaintiff lacks a “sufficient stake” in the outcome.13  However, the 
current interpretation of Article III as imposing “standing” 
requirements is neither a natural nor inevitable jurisprudential 
evolution.  Indeed, at the time of this Nation‟s founding, the law did 
not recognize limitations on federal judicial review based on notions 
of “standing.”14  Rather, the ability of plaintiffs to access justice 
through the federal courts was tied to their ability to articulate a legal 
right and frame a viable substantive cause of action.15  Thus, 
plaintiffs who sufficiently alleged a prima facie case could have their 
rights protected by the courts of the United States. 

It is unsurprising that the courts did not feel constitutionally 
compelled to craft a standing doctrine during this time.  After all, 
the text of Article III itself does not refer to “standing,” “injury,” or 
“causation,”16 and it certainly does not require that federal plaintiffs 
have a “personal stake”17 in the outcome of the litigation.  Article 
III, on its face, merely extends the “judicial [p]ower” to a number of 
specific categories of “cases” and “controversies.”18  Tellingly, the 

                                                                                                       
12  See U.S. CONST. art. III. 
13  Sierra Club v. Morton, 405 US. 727, 731-32 (1972). 
14  See e.g., Cass R. Sunstein, What’s Standing After Lujan? Of Citizen 

Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 170 (1992) (noting that, 
during the period from the nation‟s founding until roughly 1920, “there was no 
separate standing doctrine at all”) (internal citations omitted). 

15  Id. at 170.  In arguing that Article III does not prevent so-called 
citizen suits on standing grounds, Professor Sunstein states:  “No one believed 
that the Constitution limited Congress‟ power to confer a cause of action.  
Instead, what we now consider to be the question of standing was answered by 
deciding whether Congress or any other source of law had granted the plaintiff 
a right to sue.  To have standing, a litigant needed a legal right to bring suit . . . 
. If neither Congress nor the common law had conferred a right to sue, no 
case or controversy existed.”  Id. 

16  See U.S. CONST. art. III. 
17  Gratz v. Bollinger, 539 U.S. 244, 260-61 (2003) (requiring plaintiff 

to have personal stake in outcome of litigation in order to satisfy standing 
requirement). 

18  U.S. Const. art. III 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 124 
  
 

Court‟s first reference to “standing” as an Article III limitation did 
not occur until 1944.19 

The first whisperings of a standing limitation emerged—
somewhat ironically—during the progressive jurisprudence of the 
New Deal Court.  The New Deal Court, led by Justices Brandeis 
and Frankfurter, sought to “insulate progressive and New Deal 
legislation from frequent judicial attack” in their steadfast belief that 
courts should not intervene in democratic processes.20  During this 
period, the Court eventually interpreted Article III as incorporating 
a “legal interest” requirement for plaintiff standing.21  The “legal 
interest” requirement thus constitutionalized the prior practice of 
requiring plaintiffs to demonstrate a connection to a common law 
right and served to protect the Supreme Court‟s developing 
progressive doctrine from challenge by more conservative courts. 

The passage of the Administrative Procedure Act (“APA”) 
in 1946 was an important moment in the development of the law of 
standing.22  The APA provides that “[a] person suffering legal wrong 
because of an agency action, or adversely affected or aggrieved by 
agency action within the meaning of a relevant statute, is entitled to 
judicial review thereof.”23  The expansion of federal court 
jurisdiction over agency actions did not supplant the legal interest 
requirement of yore.  Rather, the passage of the APA was in part an 
attempt to “codify the developing body of judge-made standing law 
. . . to recognize standing in three straightforward categories of 
cases.”24  Those three categories included situations where a 
plaintiff‟s common law or statutory legal interest was implicated.  
Thus, the passage of the APA did not alter the existing rights-
oriented standing analysis. 

The Burger and Rehnquist courts, however, sought to 
develop a more restrictive view of standing under Article III over 
the next few decades by narrowly interpreting plaintiff injuries that 
conflicted with their burgeoning conservative ideological agendas.25  

                                                                                                       
19  Sunstein, supra note 14, at 170 (citing Stark v. Wickard, 321 U.S. 

288, 307-09 (1944)). 
20  Id. at 179.  See also Stephen L. Winter, The Metaphor of Standing and 

the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1418-25 (1988). 
21  See supra note 5 and accompanying text. 
22  See Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 

(1946) (codified as amended at 5 U.S.C. §§ 551-59, 701-06 (2006)). 
23  5 U.S.C. § 702. 
24  Sunstein, supra note 14, at 181. 
25  For examples of the Burger Court denying standing to disfavored 

federal claims, see Warth v. Seldin, 422 U.S. 490 (1975), City of Los Angeles v. 



  
125 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

Accordingly, the Court ultimately incorporated common law tort 
concepts of injury, causation, and redressability into its Article III 
standing calculus.  The Court‟s landmark decision in Association of 
Data Processing Organization v. Camp completely displaced the former 
focus on substantive legal rights, holding that federal court review 
was limited to only those plaintiffs who could demonstrate an 
“injury in fact, economic or otherwise.”26  The Court declared that 
the legal interest test was relevant only to “the merits” of a case, and 
that the “question of standing [was] different.  It concerns, apart 
from the „case‟ or „controversy‟ test, the question whether the 
interest sought to be protected by the complainant is arguably within 
the zone of interests to be protected or regulated by the statute or 
constitutional guarantee in question.”27  While this case interpreted 
standing under the APA, future decisions have clarified that a 
showing of injury-in-fact is a constitutional standing requirement of 
Article III.28 

The current framework for standing thus incorporates the 
injury-in-fact requirement, while adding causation and redressability 
to the calculus.  Accordingly, today, a plaintiff is constitutionally 
required to demonstrate that she has (1) suffered an injury-in-fact to 
a legally cognizable right, (2) where such injury is fairly traceable to 
the defendant‟s actions, and (3) the relief requested by the plaintiff is 
sufficient to redress her injury.29  While this seemingly compact and 

                                                                                                       
Lyons, 461 U.S. 95 (1983), and Allen v. Wright, 468 U.S. 1250 (1984), all 
discussed infra. For examples of the Rehnquist Court denying standing to 
disfavored claims, see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) 
(holding that the father of a school-aged child lacked standing to challenge a 
school district‟s policy requiring teacher recitation of the Pledge of Allegiance 
because he could not assert the rights of his daughter), and Lujan v. Defenders of 
Wildlife, 504 U.S. 555 (1992) (holding that the injury alleged by an 
environmental group, specifically that their ability to enjoy viewing endangered 
species would be harmed by new government regulations, was too speculative 
to qualify for Article III standing). 

26  397 U.S. 150, 152 (1970). 
27  Id. at 153. 
28  See, e.g., Vt. Agency of Natural Res. v. United States ex rel. Stevens, 

529 U.S. 765, 771 (2000); Steel Co. v. Citizens for a Better Env‟t, 523 U.S. 83, 
102-04 (1998); Bennett v. Spear, 520 U.S. 154, 162 (1997); Lujan v. Defenders 
of Wildlife, 504 U.S. 555, 560 (1992). 

29  See, e.g., Valley Forge Christian Coll. v. Am. United for Separation 
of Church & State, Inc., 454 U.S. 464, 473 (1982) (stating that “the exercise of 
judicial power, which can so profoundly affect the lives, liberty, and property 
of those to whom it extends, is therefore restricted to litigants who can show 
„injury in fact‟ resulting from the action which they seek to have the court 
adjudicate”). The Court also has articulated a number of sub-constitutional 
restrictions on federal court review. These additional standing limitations 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 126 
  
 

bright-line tripartite scheme is notoriously rife with ambiguity, bias, 
and unpredictability,30 a few basic themes can be gleaned from some 
of the Court‟s seminal decisions on standing. 

First, the Court regularly has denied standing on the 
grounds that the claimed injuries were speculative, conjectural, or 
not tied to the actions of the defendant.  While an “actual injury” 
surely could suffice for standing purposes, the Court has long 
recited the proposition that there must be a “real and immediate 
threat” of a prospective injury to satisfy standing.31  In the seminal, 
and oft criticized, Lujan v. Defenders of Wildlife decision, plaintiffs 
challenged a policy adopted by the Secretary of the Interior that 
rendered the Endangered Species Act (“ESA”) applicable only to 
actions occurring within the United States or on the high seas.32  
The section of the ESA relevant to the litigation requires federal 
agencies to insure that their actions are “not likely to jeopardize the 
continued existence of any endangered species.”33  The challenged 
regulation in Lujan made that requirement inapplicable to actions by 
federal agencies in foreign countries.34 

The plaintiffs, who were members of a national wildlife 
organization, sued to invalidate the regulation under the citizen-suit 
provisions of the ESA.35  One of the plaintiffs alleged that she had 
“observed the traditional habitat of the endangered nile [sic] 
crocodile” during her past travels to Egypt, and “intend[ed] to do so 
again” in the future.36  Thus, she argued that she “will suffer harm in 
fact as a result of [the] American . . . role . . . in overseeing the 
rehabilitation of the Answan High Dam on the Nile.”37  Another 

                                                                                                       
usually are not argued to be derived from the “cases” and “controversies” 
language of Article III, but rather reflect various “prudential” concerns.  See 
e.g., Bennett, 520 U.S. at 162-63 (zone of interests limitation); Valley Forge, 454 
U.S. at 473-74 (generalized grievances limitation); Warth v. Seldin, 442 U.S. 
490, 499 (1975) (restriction on third-party standing). 

30  See infra Part III. 
31  See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). 
32 504 U.S. 555, 557-58 (1992) (citing Endangered Species Act of 

1973, Pub. L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 
1531-37a, 1538-44 (1988)). 

33  Id. at 558 (quoting 16 U.S.C. § 1536(a)(2)). 
34  Id. at 558-59 (citing 50 C.F.R. 402.01 (1991)). 
35  Id. at 571-72. The citizen-suit provision of the ESA grants standing 

to “any person” alleging a violation “of any provision of this chapter.” 16 
U.S.C. § 1540(g). For a critique of the Court‟s holding that the citizen-suit 
provision of the ESA was not a sufficient congressional substitute for the 
requirements of Article III standing, see generally Sunstein, supra note 14. 

36  Lujan, 504 U.S. at 563. 
37  Id. 



  
127 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

plaintiff alleged that she had “observed th[e] habitat” of 
“endangered species such as the Asian elephant and the leopard” in 
Sri Lanka, and would like to do so again in the future.38 

In a majority opinion authored by Justice Scalia, the Court 
held that the plaintiffs had failed to satisfy the constitutional 
requirement of injury.39  The Court viewed the plaintiffs‟ allegations 
of injury as a future “inten[t] to return to the places they had visited 
before—where they will . . . be deprived of the opportunity to 
observe animals of the endangered species.”40  So framed, the Court 
found the allegations of harm to be “pure speculation and 
fantasy,”41 thus failing the standing requirement of an injury that is 
“actual or imminent.”42 

The Court expounded upon the Lujan treatment of 
prospective injury in the Bennett v. Spear decision.43  In Bennett, the 
plaintiffs challenged a biological opinion issued by the Fish and 
Wildlife Service (“FWS”) under provisions of the ESA.44  The ESA 
requires the FWS to insure that their actions are not likely to 
jeopardize the existence of an endangered species.45  If an agency—
such as the FWS—determines that an action in fact may affect a 
species adversely, they are required to issue a “biological opinion” 
stating how the action would affect the species and detailing any 
“reasonable and prudent” alternatives to the action.46  In this case, 
the FWS was notified that a water reclamation project might affect 
two species of endangered fish.47  Accordingly, the FWS issued a 
biological opinion stating that reducing the water levels on the 
affected lakes would avoid jeopardizing the endangered fish species 
during the operation of the reclamation project.48  The plaintiffs—

                                                                                                       
38  Id. at 563-64. 
39  Id. at 564. The Court also held that the requirement of 

redressability had not been satisfied, in part because “the [federal] agencies 
generally supply only a fraction of the funding” for the foreign projects, and 
thus there was no reason to believe that those projects would be suspended if 
the regulation was invalidated.  Id. at 571. 

40  Id. at 564. 
41  Id. at 567. 
42  Id. at 560.  See also Summers v. Earth Island Inst., 129 S. Ct. 1142, 

1150-51 (2009) (denying standing on the grounds that an intent to visit forests 
in the future represented an insufficiently concrete injury). 

43  520 U.S. 154 (1997) (Scalia, J.). 
44  Id. at 157 (citing 16 U.S.C. §§ 1533, 1536). 
45  Id. at 158 (citing 16 U.S.C. § 1536(a)(2)). 
46  Id. at 158 (citing 16 U.S.C. § 1536(b)(3)(A)). 
47  Id. at 159. 
48  Id. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 128 
  
 

two Oregon irrigation districts that receive water from the 
reclamation project—sued on the grounds that their use of the lakes 
for “recreational, aesthetic and commercial purposes, as well as for 
their primary source[] of irrigation water” would be “irreparably 
damaged” by the actions of the FWS.49 

The Court began its analysis by reciting the mantra that 
Article III required injuries to be “concrete and particularized,” and 
not “conjectural or hypothetical.”50  The Court also acknowledged 
the Government‟s contention that the plaintiffs did “not necessarily 
establish (absent information concerning the Bureau‟s water 
allocation practices) that petitioners will receive less water.”51  
Nonetheless, the Court held that the allegations of injury were 
sufficient to invoke jurisdiction under Article III.52  The Court 
stressed that “the manner and degree of evidence required at the 
successive stages of litigation” is relevant to the analysis of injury.53  
Accordingly, the majority felt that “general factual allegations of 
injury” made by the plaintiffs during the pleading stage were 
sufficient to “presume [the] specific facts under which petitioners 
will be injured.”54 

The Lujan and Bennett decisions demonstrate just a few of 
the doctrinal reiterations favored by the Court in its analysis of 
Article III standing.  The tools, slogans, and intonations that 
standing doctrine has cultivated, however, are insufficient to resolve 
predictably the critical question of access to justice. 

 
A. Contemporary Justifications for the Doctrine of Standing 

  
The classic justifications for modern standing doctrine 

embody two central themes: separation-of-powers and 
representative democracy.  These jurisprudential perspectives 
purport to impute meaning and purpose to the current standing 
framework, a necessary task given that the Constitution does not by 
its terms animate any notion of “standing.”  Nonetheless, these 
classic theoretical defenses of standing suffer from well-documented 
analytical flaws. 

                                                                                                       
49  Id. at 160. 
50  Id. at 167. 
51  Id. 
52  Id. at 168. 
53  Id. at 167-68. 
54  Id. at 168.  The Court also held that the alleged injury was fairly 

traceable to the actions of the FWS, given that the issuance of a biological 
opinion was a “virtually determinative effect” on agency action.  Id. at 170.  



  
129 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

1. Separation-of-Powers Theories 
 

Many regard the current law of standing as an essential limit 
on the power of an unelected judiciary in a democratic society.  The 
Court‟s decision in Allen v. Wright is widely seen as the paradigmatic 
example of a separation-of-powers defense of standing law.55  In 
Allen, the parents of African-American children sued the Internal 
Revenue Service on the grounds that its policy of providing tax-
exempt status to racially-segregated private schools violated their 
constitutional rights, while simultaneously undermining their 
children‟s ability to receive a desegregated public education.56  In 
dismissing the action for want of an injury-in-fact or causation for 
standing purposes, the Court clarified that a central purpose of the 
Article III justiciability requirements was to ensure a “proper—and 
properly limited—role of the courts in a democratic society.”57  The 
Court further elaborated on the reasoning underlying its denial of 
standing: 

All of the doctrines that cluster about Article III—not 
only standing but mootness, ripeness, political 
question, and the like—relate in part, and in different 
though overlapping ways, to an idea, which is more 
than an intuition but less than a rigorous and explicit 
theory, about the constitutional and prudential limits 
to the powers of an unelected, unrepresentative 
judiciary in our kind of government.58 

As many other commentators have noted, the Court 
nonetheless has failed to connect the constitutional duty to maintain 
an adequate separation-of-powers with the need to maintain rigid 
standing requirements.59  In what ways are the requirements for 

                                                                                                       
55  See Allen v. Wright, 468 U.S. 737 (1984). 
56  Id. at 739-40.  For a more thorough examination of the facts and 

holding of the Allen case, see infra Part III.A. 
57  Id. at 750 (quoting Warth v. Seldin, 442 U.S. 490, 498 (1975)). 
58  Id. (quoting Vander Jagt v. O‟Neill, 699 F.2d 1166, 1178 (D.C. Cir. 

1983)). 
59  See, e.g., Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 

73, 96.  Professor Siegel states: Allen v. Wright is therefore representative of 
what might be called the ipse dixit version of the separation-of-powers theory 
of justiciability. The Court appeals to an intuitive, incompletely articulated 
sense that because courts should play a limited role in a democratic society, 
whatever limits courts must be good and must protect us from excessive 
judicial power . . . . [H]owever, not every conceivable limitation on judicial 
proceedings can qualify as a constitutional purpose. We need some explanation 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 130 
  
 

injury-in-fact, causation, and redressability tied to limiting excessive 
power exercised by “activist courts”?  Plaintiffs who satisfy these 
requirements still can litigate important cases of national concern.60  
By way of example, the Court‟s infamous decision in the Chinese 
Exclusion Case,61 which upheld racial immigration restrictions while 
establishing the “plenary power” doctrine, was perfectly justiciable, 
as were the Court‟s decisions in other influential yet notorious cases 
such as Dred Scott v. Sandford,62 Lochner v. New York,63 and Korematsu v. 
United States.64  The standing requirements also did not affect the 
Court‟s ability to decide more recent cases of the utmost national 
importance, such as Roe v. Wade,65 Griswold v. Connecticut,66 Lawrence v. 
Texas,67 Parents Involved v. Seattle,68 Bush v. Gore,69 or Citizens United v. 

                                                                                                       
of why justiciability constraints are so critical to maintaining the proper limits 
on the judicial role.  Id. (emphasis added) (footnote omitted). 

60  See, e.g., Citizens United v. Fed. Election Comm‟n, 130 S. Ct. 876 
(2010) (holding that capping corporate spending on political advertising 
violated the First Amendment right to free speech); Lawrence v. Texas, 539 
U.S. 558 (2003) (holding that a state statute criminalizing homosexual activity 
was unconstitutional under the Due Process Clause of the Fourteenth 
Amendment); Roe v. Wade, 410 U.S. 113 (1973) (finding a protected liberty 
interest in a woman‟s right to choose to have an abortion and prohibiting state 
restrictions on that right prior to the third trimester); Miranda v. Arizona, 384 
U.S. 436 (1966) (creating the now well-known “Miranda rights” that criminal 
suspects must be apprised of when taken into custody); Griswold v. 
Connecticut, 381 U.S. 479 (1965) (finding a constitutional “right of privacy” 
and invalidating a state statute prohibiting the use of contraceptives as a 
violation of that right when applied to married couples); Brown v. Bd. of 
Educ. of Topeka, 347 U.S. 483 (1954) (holding that segregation of public 
schools violates the Equal Protection Clause of the Fourteenth Amendment); 
Korematsu v. United States, 323 U.S. 214 (1944) (upholding Executive Order 
9066, which authorized the detention of Japanese Americans in internment 
camps during World War II); Lochner v. New York, 198 U.S. 45 (1905) 
(holding that a statute imposing a maximum weekly hour requirement violated 
the liberty interest in the “freedom to contract” in violation of the Due 
Process Clause of the Fourteenth Amendment); Chae Chan Ping v. United 
States (Chinese Exclusion Case), 130 U.S. 581 (1889) (upholding an Act of 
Congress banning Chinese immigration on the basis of the newly-formed 
“plenary power” doctrine); Dred Scott v. Sandford, 60 U.S. 393 (1857) 
(holding that African Americans are not citizens of the United States and thus 
have no right to sue in the federal courts). 

61  Chinese Exclusion Case, 130 U.S. at 599-600. 
62  60 U.S. 393 (1857). 
63  198 U.S. 45 (1905). 
64  323 U.S. 214 (1944). 
65  410 U.S. 113 (1973). 
66  381 U.S. 479 (1965). 
67  539 U.S. 558 (2003). 



  
131 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

Federal Election Commission.70  All of these cases arguably satisfied the 
current tripartite standing test, and yet they are examples of judicial 
power affecting large segments of society.  Therefore, the argument 
that standing doctrine is necessary to maintain separation-of-powers 
seems belied by the inherent disconnect between standing‟s rigid 
requirements and the Court‟s constitutional duty to decide 
important cases of national concern. 

 
2. Representational Theories 

 
One classic defense of standing doctrine relies on the related 

argument that the standing requirements are necessary to ensure that 
the judicial process is controlled by plaintiffs with a sufficient stake 
in the litigation.71  By restricting relief to those persons most 
affected by the issues, the standing limitations serve the purpose of 
maintaining the intrinsic fairness of an adequately representative 
judicial process.  As the Court has explained: 

[T]he courts should not adjudicate such rights 
unnecessarily, and it may be that in fact the holders of 
those rights either do not wish to assert them, or will 
be able to enjoy them regardless of whether the in-
court litigant is successful or not . . . . The courts 
depend on effective advocacy, and therefore should 
prefer to construe legal rights only when the most 
effective advocates of those rights are before them.72 

The danger in allowing access to so-called “ideological” plaintiffs 
lies in the stare decisis effect of prior litigation.  An ideological 
plaintiff, the argument goes, is more likely to frame a case broadly, 
which perhaps leads to a poor result that will be potentially binding 

                                                                                                       
68  551 U.S. 701 (2007) (prohibiting the assignment of school seats 

based on race in order to achieve “racial balance” in public schools).  Parents 
Involved will be discussed in greater detail, infra Part III.B. 

69  531 U.S. 98 (2000) (overturning a Florida Supreme Court decision 
and ordering the suspension of the vote recount during the 2000 presidential 
election). 

70  130 S. Ct. 876 (2010). 
71  See Sierra Club v. Morton, 405 US. 727, 731-32 (1972) (“the 

question of standing depends upon whether the party has alleged . . . a 

„personal stake in the outcome of the controversy‟ ”) (quoting Baker v.Carr, 
369 U.S. 186, 204 (1962). 

72  Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (citation omitted). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 132 
  
 

on more traditional plaintiffs.73 Allowing such unaccountable 
plaintiffs access to the federal courts, thus, would be unfair to 
genuinely interested plaintiffs, whose rights may be impacted 
negatively through the device of stare decisis.74  Therefore, the 
standing requirements “reflect[] a due regard for the autonomy of 
those persons likely to be most directly affected by a judicial 
order.”75 

There are a number of critical flaws with the 
representational defense of standing doctrine.  Initially, it is clear 
that the existing limitations on standing do not prevent litigation 
from potentially impinging on the rights of genuinely affected non-
parties.  A case brought by a traditional plaintiff will affect the rights 
of other genuinely interested parties76 in the same manner as a case 
brought by an “ideological” plaintiff.  In both instances, the rights 
of nonparties will be affected through the mechanism of stare decisis.  
Furthermore, there is no valid reason to believe that a traditional 
plaintiff would indeed tailor her litigation more craftily and narrowly 
than an ideological plaintiff.  It is certainly possible, for instance, 
that a genuinely affected plaintiff may choose to follow a broadly 
framed, ideological litigation strategy that potentially would bind the 
rights of other nonparties.  As Professor Jonathan Siegel has 
observed, “the problem of interested parties who find their rights 
affected by litigation brought by others is simply intrinsic to our 
legal system [and] [t]he justiciability requirements do little to avoid 
it.”77 

A second criticism of the representational defense observes 
that ideological plaintiffs are easily able to join a genuinely affected 
group of plaintiffs in litigation, notwithstanding the requirements of 
standing.  Plaintiffs who are deemed to have an ideological interest 
in a case according to the existing standing framework often can 
take steps to become interested parties under the eyes of the law.  
As Professor Cass Sunstein documented long ago, an individual‟s 

                                                                                                       
73  Brilmayer, supra note 10, at 309 (noting “there are reasons to doubt 

whether self-appointed ideological plaintiffs should be presumed to be 
adequate representatives”). 

74  Id. 
75  Valley Forge Christian Coll. v. Am. United for Separation of 

Church & State, Inc., 454 U.S. 464, 473 (1982). 
76  Brilmayer, supra note 10, at 306-10. 
77  Siegel, supra note 59, at 92. Please review Professor Siegel‟s 

excellent article for an exhaustive examination and critique of the current 
theoretical justifications for the justiciability doctrines. 



  
133 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

preferences are rarely exogenous to the legal system.78  Rather, an 
individual‟s desires and preferences are often “a function of legal 
rules,” shaped by the existing legal framework.79  In the case of 
standing, it is well-established that even so-called ideological 
plaintiffs can take strategic steps to ensure that the standing 
requirements are satisfied.80 

One final criticism of the representational defense, and of 
standing doctrine more generally, deconstructs the seemingly bright-
line distinction between ideological and factual injuries.  The 
historical shift in focus from legal injury to injury-in-fact requires 
courts to distinguish between purely “ideological” injuries and 
factual injuries.  Allegations of injury that are classified as ideological 
by a court are dismissed for lack of standing, while claims of injury 
that appear to be concrete and particularized readily pass 
constitutional muster.81  And yet to apply such a seemingly basic 
distinction, courts inevitably must rely on a normative toolbox of 
canons to ascertain what injuries should matter for Article III 
purposes.  As Professor Sunstein explains: 

[T]here are reasonably well-established conventions 
on what counts as an injury, and these conventions 
tend to disguise the normative judgments and make 
them seem purely factual.  But in every case, the 
person who brings a lawsuit believes that she has 
indeed suffered an injury in fact.82 

The failings of theories based on notions of separation-of-
powers and representational democracy to adequately inform 
standing doctrine is not surprising given the law‟s inherent 
indeterminacy.  The effort of reconciling the often conflicting and 
nonsensical standing decisions requires moving beyond classic 
constitutional theory and towards an acknowledgment of the role 

                                                                                                       
78  See generally Cass R. Sunstein, Legal Interference with Private Preferences, 

53 U. CHI. L. REV. 1129 (1986). 
79  Id. at 1137. 
80  See, e.g., Siegel, supra note 59, at 93 (arguing that one reason “why 

the justiciability requirements do little to protect the „most affected‟ individuals 
is that ideological plaintiffs may take steps to join the affected group”); see also 
Lujan v. Defenders of Wildlife, 504 U.S. 555, 579 (1992) (Kennedy, J., 
concurring) (recognizing that the plaintiffs likely could have satisfied the 
standing requirements by taking the step of purchasing plane tickets or setting 
definite plans to travel). 

81  See infra Part III. 
82  Sunstein, supra note 14, at 189. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 134 
  
 

that ideology, race, and social inequality play in judicial decision-
making. 

 
III. THE INDETERMINACY OF STANDING DOCTRINE 
 

The indeterminate nature of standing doctrine is well-
documented.83  Scores of scholars have decried the incoherence and 
sophistry that dominate standing doctrine.84  It is claimed that 
standing law—and its „worthless generalizations‟85 —is but a tool for 
judges to “provide access to the courts to individuals who seek to 
further the political and ideological agendas of judges.”86  
Furthermore, standing doctrine is a “conceptual mistake”87 
resembling a “word game played by secret rules.”88  Empirical 
studies have borne out these intuitions, establishing that the law of 
standing is malleable and that outcomes are shaped by the 
ideological preferences of individual judges.89 

The charge that the law itself is inherently indeterminate 
also necessarily informs our understanding of the ideological nature 
of standing law.90  The claim of indeterminacy extends from the 

                                                                                                       
83  See, e.g., David N. Cassuto, The Law of Words: Standing, Environment, 

and Other Contested Terms, 28 HARV. ENVTL. L. REV. 79 (2004); Kenneth Culp 
Davis, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601 (1968); William A. 
Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Elizabeth Magill, 
Standing for the Public: A Lost History, 95 VA. L. REV. 1131 (2009); Siegel, supra 
note 59; Sunstein, supra note 14. 

84  See supra note 83 and accompanying text. 
85  Ass‟n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 151 

(1970) (“Generalizations about standing to sue are largely worthless as such.”). 
86  Pierce, supra note 2, at 1743. 
87  Sunstein, supra note 14, at 167. 
88  Flast v. Cohen, 392 U.S. 83, 129 (1967) (Harlan, J., dissenting). 
89  See, e.g., Fletcher, supra note 3, at 224-50; Sunstein, supra note 14, at 

168-97; Pierce, supra note 2, at 1758-63; Gene R. Nichol, Jr., Standing for 
Privilege: The Failure of Injury Analysis, 82 B.U. L. REV. 301, 338-40 (2002); see also 
Gregory J. Rathjen & Harold J. Spaeth, Denial of Access and Ideological Preferences: 
An Analysis of the Voting Behavior of the Burger Court Justices, 1969-1976, W. POL. 
Q., Mar. 1983, at 71; C.K. Rowland & Bridget Jeffery Todd, Where You Stand 
Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the Federal District 
Courts, J. POL., Feb. 1991, at 175; Nancy C. Staudt, Modeling Standing, 79 N.Y.U. 
L. REV. 612 (2004) (acknowledging that standing decisions are often based on 
the judges‟ personal ideologies, yet arguing that standing doctrine is predictable 
when clear precedent and judicial oversight exist). 

90  See, e.g., Duncan Kennedy, Form and Substance in Private Law 
Adjudication, 89 HARV. L. REV. 1685 (1976); David Kairys, Law and Politics, 52 
GEO. WASH. L. REV. 243 (1984); Gary Peller, The Metaphysics of American Law, 
73 CALIF. L. REV. 1151 (1985); Clare Dalton, An Essay in the Deconstruction of 



  
135 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

classic realist critique that the law cannot be applied mathematically 
in a formalistic fashion, but rather is molded by complex social 
forces.91  It follows from this realist observation that legal rules 
rarely, if ever, dictate a particular result: “[L]egal reasoning is 
indeterminate and contradictory.  By its own criteria, legal reasoning 
cannot resolve legal questions in an „objective‟ manner; nor can it 
explain how the legal system works or how judges decide cases.”92  
The observation that traditional legal reasoning is subject to both 
the limits of language and the whims of judicial preference renders 
the law and legal theory “infinitely manipulable”93 and, thus, 
indeterminate.94 

The purpose of this section, then, is to extend the 
indeterminacy critique by examining recent cases involving racial 
and class inequality in the affirmative action, desegregation, 
integration, and racial profiling contexts.  Situating the critique in the 
inequality context provides an opportunity to decode the values and 
principles influencing judicial decision-making through the use of a 
critical race methodology.  For the purposes of the indeterminacy 
analysis, it is useful to break the case law discussion into two 
categories:  (a) those cases involving alleged racial injuries to non-
white plaintiffs, and (b) those cases involving alleged racial injuries 
to white plaintiffs.  A doctrinal comparison of these cases 
demonstrates that the Court adopts an unnecessarily narrow 
conception of injury and causation in racial claims of non-white 
plaintiffs, while alternatively applying an unnecessarily broad 
conception of injury and causation in cases involving the racial 
claims of white plaintiffs.95 

 
A. Of Black Injuries, Desegregation, and Profiling 

 
The law of standing has been remarkably consistent in its 

treatment of injuries by non-white plaintiffs in cases that implicate 

                                                                                                       
Contract Doctrine, 94 YALE L.J. 997 (1985); Joseph William Singer, The Player and 
the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).  See also supra note 1 
and accompanying text. 

91  See, e.g., Cohen, supra note 8, at 812 (“Valuable as is the language of 
transcendental nonsense for many practical purposes, it is entirely useless 
when we come to study, describe, predict, and criticize legal phenomena.”). 

92  Singer, supra note 90, at 6. 
93  Id. 
94  Id. at 24 (“[T]he legal theories advanced to justify our rules and 

institutions are indeterminate.  The same theories could be used to justify very 
different sorts of institutions and very different rules.”). 

95  The terms “racial claims” and “racial injuries” refer broadly to 
cases involving allegations of racial discrimination. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 136 
  
 

racial inequality.  In the desegregation, integration, and racial 
profiling contexts, the Court has narrowly construed the concepts of 
injury, causation, and redressability to deny attempts to undermine 
the racial status quo. 

An early test of the Court‟s modern standing framework 
involved litigation challenging exclusionary residential zoning 
practices.  In Warth v. Seldin, various plaintiff groups challenged the 
zoning restrictions of the small upstate New York town of 
Penfield.96  The plaintiffs—consisting of taxpayers, residents, low-
income individuals, and homebuilders—alleged that the zoning 
restrictions violated their constitutional rights by effectively 
excluding low-income, often non-white, persons from residing in 
the town.97  The Court dismissed the plaintiffs‟ claims on standing 
grounds.  First, the Court rejected the taxpayer group‟s claim that 
the town‟s refusal to build low-income housing caused their 
neighboring town of Rochester to provide more housing of that 
type, resulting in higher taxes for property owners.98  The Court 
viewed this injury as merely “conjectural,” finding that “the line of 
causation between Penfield‟s actions and such injury [was] not 
apparent from the complaint.”99 

The Court similarly dismissed the claims of the Penfield 
residents, who argued that the town‟s exclusionary zoning policy 
deprived them “of the benefits of living in a racially and ethnically 
integrated community.”100  According to the Court, the claimed 
injury was simply not judicially cognizable—even though a different 
set of plaintiffs prevailed on a very similar claim under the 1968 
Civil Rights Act in a previous case.101  The Court also did not find 
the injury of the low-income set of plaintiffs—the inability to find 
affordable housing in Penfield—to satisfy Article III, as the 
plaintiffs could not demonstrate “a substantial probability that they 
would have been able to” reside in Penfield absent the zoning 
policy.102  Finally, the court rejected the claims of the homebuilders 
on the grounds that the injury was prospective.103 

                                                                                                       
96  Warth v. Seldin, 422 U.S. 490 (1975). 
97  Id. at 493. 
98  Id. at 496-97. 
99  Id. at 509. 
100  Id. at 512. 
101  Id. at 512-14 (distinguishing Trafficante v. Metro. Life Ins. Co., 

409 U.S. 205 (1972)). 
102  Id. at 504. 
103  Id. 



  
137 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

Neither precedent nor the requirements of Article III, 
however, warranted the rigid interpretations of injury and causation 
adopted by the Court in Warth.104  The harms suffered by the Warth 
plaintiffs could have been found justiciable if the Court had 
followed its precedent in the Trafficante case, which allowed standing 
based on injuries linked to the “benefits of interracial 
association.”105  The Court‟s unnecessarily stringent view of 
causation in Warth also has not comported with the Court‟s other 
decisions on standing.  In Bennett v. Spear, for instance, the Court 
quite generously “presum[ed] the existence of injury-in-fact and 
causation based on the averments made in the complaint.”106  The 
allegations of harm and causation made in Warth clearly could have 
been “presumed” sufficient under the lax framework employed in 
Bennett.107 

The Court again adopted a harsh construction of the 
requirements of standing in Allen v. Wright.108  Allen represents an 
effort to further the desegregation mandate of Brown v. Board of 
Education109 by eliminating federal tax benefits to racially 
discriminatory private schools.  Following Brown, scores of white 
parents pulled their children out of integrating public schools in 
order to enroll them in racially exclusionary private schools.110  
While these private schools actively encouraged and benefited from 
“white flight,”111 the federal Internal Revenue Service (“IRS”) at the 
time nonetheless extended tax-exempt status to many such schools 
in contravention of its own stated policy.112  Accordingly, a group of 
parents of black children enrolled in desegregating public schools 
filed a national class action suit against the IRS.  The Court framed 

                                                                                                       
104  See infra Part III.B; see also Vill. of Arlington Heights v. Metro. 

Hous. Dev. Corp., 429 U.S. 252 (1977). 
105  Trafficante, 409 U.S. at 209-10. 
106  See Bennett v. Spear, 520 U.S. 154, 168 (1997) (construing the 

allegations of injury and causation contained in the complaint to “presume” 
justiciability). 

107  See id. 
108  Allen v. Wright, 468 U.S. 737 (1984). 
109  Brown v. Bd. of Educ., 347 U.S. 483 (1954). 
110  Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-

Convergence Dilemma, 93 HARV. L. REV. 518, 518 (1980). 
111  Viviva Pierre & Madeline Herbert, Beyond Brown: Louisiana Lawyer 

Discusses the East Baton Rouge Desegregation Suit and its Relation to Brown v. Board 
of Education, SPECTRUM MAGAZINE, Apr. 2004, at 15. 

112  Allen, 468 U.S. at 743.  The court noted, “[t]he IRS denies tax-
exempt status under §§ 501(a) and (c)(3) of the Internal Revenue Code, 26 
U.S.C. §§ 501(a) and (c)(3) . . . to racially discriminatory private schools.”  Id. at 
740. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 138 
  
 

the alleged injuries as consisting of (1) stigmatic harm and 
denigration due to the ongoing government aid provided to racially 
discriminatory schools, and (2) a diminished ability to receive an 
education in a racially integrated school.113   

The Court held that the first injury—which they 
alternatively interpreted as a request for the Government to avoid 
violating the law—was not judicially cognizable based on 
precedent.114  According to the Court, the plaintiffs had not 
adequately alleged a “concrete” injury since their children had never 
been excluded from any of the racially discriminatory schools.  
Under this construction, the Court would require parents to subject 
their children to racial exclusion from a private school before 
finding the existence of a sufficiently particularized injury-in-fact.115  
The second injury alleged by the parents was also rejected as too 
“abstract” and “speculative” to satisfy Article III‟s rigid standing 
requirements.116  In particular, the Court found it to be “entirely 
speculative” whether the remedy sought would “have a significant 
impact on the racial composition of the public schools,” and that 
the plaintiffs thus could not establish that the acts of the IRS were 
fairly traceable to a diminished ability to attend a desegregated 
school.117  

The injuries complained of in Allen could have been found 
justiciable if the Court adopted the broad construction of injury and 
causation applied in cases seeking to vindicate the interests of white 
plaintiffs to not be subject to race-conscious programs.118  The 

                                                                                                       
113  Id. at 754, 756. 
114  Id. at 755. 
115  Id. at 756 (The Court believed that a finding of injury under the 

facts would “transform the federal courts into „no more than a vehicle for the 

vindication of the value interests of concerned bystanders.‟ ” (quoting United 
States v. SCRAP, 412 U.S. 669, 687 (1973))). 

116  Id. at 756, 758. 
117  Id. at 758-59. 
118  See infra Part III.B; Regents of Univ. of Cal. v. Bakke, 438 U.S. 

265 (1978) (holding that white medical school applicant granted standing did 
not have to establish that the affirmative action policy was the but-for cause of 
his denial of admission and that the state has a legitimate interest in 
considering race in admissions, but it must be narrowly tailored and only one 
of many factors in a competitive process); Ne. Fla. Chapter of Associated Gen. 
Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (where contractors 
association challenged city ordinance giving preference to minority-owned 
businesses, petitioner had shown injury-in-fact because of the city‟s imposed 
barrier to obtain a benefit and need not prove that it would have obtained the 
benefit but for the barrier); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 
(1995) (holding that plaintiff need not allege that it would have benefited but 



  
139 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

injury in Allen, thus, could have been framed expansively as “the 
opportunity to have a desegregation process unaffected by unlawful 
incentives for white flight”119 by using the same contrived logic that 
buttresses the Court‟s anti-affirmative action and desegregation 
cases.120 

The Court also has strictly interpreted the limits of the 
standing requirements in racial profiling cases.  In City of Los Angeles 
v. Lyons, the Court dismissed a case seeking injunctive relief for 
injuries stemming from police misconduct.121  The dissent by Justice 
Marshall inimitably summarizes the unchallenged facts of the case: 

[Adolph] Lyons [an African-American male] was pulled 
over to the curb by two officers of the Los Angeles 
Police Department (LAPD) for a traffic infraction 
because one of his taillights was burned out.  The 
officers greeted him with drawn revolvers as he exited 
from his car.  Lyons was told to face his car and spread 
his legs.  He did so.  He was then ordered to clasp his 
hands and put them on top of his head.  He again 
complied.  After one of the officers completed a pat-
down search, Lyons dropped his hands, but was ordered 
to place them back above his head, and one of the 
officers grabbed Lyons‟ hands and slammed them onto 
his head.  Lyons complained about the pain caused by 
the ring of keys he was holding in his hand.  Within five 
to ten seconds, the officer began to choke Lyons by 
applying a forearm against his throat.  As Lyons 
struggled for air, the officer handcuffed him, but 
continued to apply the chokehold until he blacked out.  
When Lyons regained consciousness, he was lying face 
down on the ground, choking, gasping for air, and 
spitting up blood and dirt.  He had urinated and 

                                                                                                       
for the discriminatory classification that gave preference to minority-owned 
businesses to receive standing and that equal protection claims under both the 
Fifth and Fourteenth Amendments require strict scrutiny analysis); Gratz v. 
Bollinger, 539 U.S. 244 (2003) (granting lead plaintiff standing because she had 
been denied undergraduate admission and holding that an admissions policy 
that made race the decisive factor was unconstitutional); see also Parents 
Involved in Cmty. Schs. v. Seattle Sch. Dist. 1, 551 U.S. 701 (2007). 

119  Cass R. Sunstein, Standing Injuries, 1993 SUP. CT. REV. 37, 50 
(1993). 

120  See infra Part IV.B. 
121  City of Los Angeles v. Lyons, 461 U.S. 95, 95 (1983). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 140 
  
 

defecated.  He was issued a traffic citation and 
released.122 

Notwithstanding the disturbingly routine nature of the 
case,123 the majority dismissed the action for lack of standing on the 
grounds that Lyons could not demonstrate “a sufficient likelihood 
that [he] would again be stopped and subjected to the unlawful use 
of force to constitute a case or controversy.”124  The Court simply 
could not fathom the “incredible assertion” that police officers 
might again racially profile and physically assault Lyons sometime in 
the future.125  In the eyes of the majority, the injury claimed by 
Lyons was too speculative to constitute a justiciable case or 
controversy.126 

The harms arising from racial profiling, however, are clearly 
not “speculative” to the individuals who are the targets of such 
policies.  Such an indifferent understanding of the physical, 
emotional, and dignitary injuries suffered by non-white victims of 

                                                                                                       
122  Id. at 114-15 (Marshall, J., dissenting). 
123  See, e.g., David A. Harris, The Stories, the Statistics, and the Law: Why 

“Driving While Black” Matters, 84 MINN. L. REV. 265, 277-85 (1999) (citing data 
from New Jersey, Maryland, and Ohio that reveals the prevalence of racial 
profiling in traffic stops).  Specifically, Harris refers to studies conducted by 
Dr. John Lamberth, which revealed that 73.2% of those stopped and arrested 
in New Jersey were African American despite the fact that only 13.5% of the 
cars on the road had an African American driver or passenger.  Id. at 279 
(citation omitted).  Similar studies in Maryland and Ohio have produced 
virtually indistinguishable results.  Id. at 280-85 (citations omitted). 

124  Lyons, 461 U.S. at 111. 
125  Id. at 106 (stating that they cannot agree that the “odds” that 

Lyons not only would be stopped for a traffic violation again but also would 
be subjected to a chokehold without any provocation whatsoever are sufficient 
to make out a federal case for equitable relief). 

126  The Lyons case has not been the only case to rigidly interpret 
injury and causation in the racial profiling context.  See, e.g., Chavez v. Ill. State 
Police, 27 F. Supp. 2d 1053 (N.D. Ill. 1998) (dismissing racial profiling case 
brought by non-white motorists on the grounds that the injury was too 
speculative and that there was not a sufficient likelihood that the non-white 
motorists would be pulled over by the police again on the basis of race); 
Kirkland v. Morgievich, Civ. No. 04-1651, 2005 U.S. Dist. LEXIS 33808 
(D.N.J. Dec. 16, 2005) (same); see also Curtis v. City of New Haven, 726 F.2d 
65, 68 (2d Cir. 1984) (plaintiff lacked standing to challenge use of mace by 
police); Davis v. City of Aurora, 705 F. Supp. 2d 1243 (D. Colo. 2010) 
(plaintiff lacked standing to challenge racial profiling policy which led to 
unlawful detention); Jones v. Bowman, 664 F. Supp. 433, 438-39 (N.D. Ind. 
1987) (holding that plaintiff lacked standing to enjoin police officers from 
performing strip searches); John Does 1-100 v. Boyd, 613 F. Supp. 1514, 1529 
(D. Minn. 1985) (holding that plaintiffs lacked standing to challenge 
continuing practice of anal cavity searches of prisoners). 



  
141 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

police violence demonstrates the wholly subjective nature of the 
standing analysis.  The Court in Lyons failed to recognize the 
extremely high incidence of racial profiling against minorities127 in its 
causation analysis, as well as the fact that “the use of racial profiling 
by law enforcement authorities in the United States has long been 
permitted and encouraged, if not expressly authorized, by U.S. 
constitutional law.”128  It seems that the injuries in Lyons would have 
been regarded as justiciable had the Court applied the more 
generous standing framework that it employed in other cases. 

The results in these three cases neither were predictable nor 
followed from reason based on the existing framework.  The Court‟s 
narrow interpretation of injury and causation in these cases runs 
counter to established precedent and indicates either outright 
disregard or contempt for the racialized injuries suffered by non-
white plaintiffs.  A doctrinal comparison of these outcomes to those 
in other cases involving the racialized injuries of white plaintiffs will 
illustrate further the indeterminacy of standing doctrine in race-
based cases. 

 
B. Of White Injuries, Innocence, and Merit 

 
While the Court has adopted a rigid interpretation of the 

requirements for standing in cases brought by non-white plaintiffs 
suffering injuries based on racial inequality, the Court has relied on a 
much looser interpretation of injury and causation in cases brought 
by white “victims” of race-based remedial admissions, employment, 
and desegregation programs. 

The Court‟s decision on standing in Regents of University of 
California v. Bakke129 paved the way for constitutional challenges to 
affirmative-action and other race-conscious remedial programs.  In 
Bakke, the plaintiff, Alan Bakke, challenged the affirmative action 
policy at the medical school of the University of California at Davis.  
The Court found the case to be justiciable, even though it was 
undisputed that Bakke could not demonstrate that he would have 
been admitted to the school in the absence of the challenged 

                                                                                                       
127  Melissa Whitney, The Statistical Evidence of Racial Profiling in Traffic 

Stops and Searches: Rethinking the Use of Statistics to Prove Discriminatory Intent, 49 
B.C. L. REV. 263, 264 (2008) (noting that Bureau of Justice statistics released in 
2005 demonstrated that minority drivers were three times as likely as white 
drivers to be stopped by the police and searched). 

128  Kevin Johnson, How Racial Profiling in America Became the Law of the 
Land: United States v. Brignoni-Ponce and United States v. Whren and the Need 
for Truly Rebellious Lawyering, 98 GEO. L.J. 1005, 1006 (2010). 

129  438 U.S. 265 (1978). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 142 
  
 

policy.130  In fact, it was almost assured that Bakke would not have 
been admitted to the school, regardless of the existence of the 
policy.  The Court acknowledged as much, noting that Bakke‟s 
faculty interviewer had given him a very low interview score, and 
that his “application had come late in the year, and no applicants in 
the general admissions process with scores below 470 were accepted 
after Bakke‟s application was completed [Bakke had a score of 
468].”131 Nonetheless, the Court determined that Bakke‟s case 
satisfied the requirements of Article III standing.  The Court limited 
its analysis to a single footnote in a fractured plurality opinion.132  
Rejecting the contention from various amici that the case lacked 
standing due to Bakke‟s admitted inability to establish either 
causation or redressability, the Court broadly reframed the injury as 
being denied the abstract opportunity to “compete for all [of the 
available] places in the class, simply because of his race.”133 

The decision to grant standing in this case, however, 
conflicted with the Court‟s narrow construction of standing in its 
other cases.  The Court in Bakke, for instance, relied on its recent 
decision in Warth v. Seldin as precedent for its holding on standing.134  
However, as previously noted, the Court in Warth utilized a much 
narrower conception of injury-in-fact, causation, and redressability 
than it applied in the Bakke case.  The Warth precedent alone 
indicates that the case should have been dismissed on standing 
grounds since Bakke‟s injury was “conjectural,” and because the 
Court itself acknowledged that Bakke could not establish a causal 
link between his denial of admission and the race-based policy.135  
Bakke was clearly unable to demonstrate that there was “a 
substantial probability” of admission but for the race-based 
policy.136  The Court in Bakke, however, avoided this clear dictate of 
precedent by broadly interpreting the injury claimed by Bakke.  
Rather than frame the injury as being denied admission due to his 
race—which is how Bakke framed the injury in his complaint—the 
Court re-envisioned the injury as being forced to compete in a race-
based application process.  By doing so, the Court was able to claim 
that the mere existence of such a race-based policy could give rise to 

                                                                                                       
130  Id. at 280 n.14 (stating “even if Bakke had been unable to prove 

that he would have been admitted in the absence of the special program, it 
would not follow that he lacked standing”). 

131  Id. at 276-77. 
132  See id. at 280 n.14 
133  Id. 
134  Id. (citing Warth v. Seldin, 422 U.S. 490 (1975)). 
135  See id. at 270. 
136  See id. 



  
143 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

an injury within the meaning of Article III.137  Under the Bakke 
construction of standing, “it seems sufficient that the plaintiff 
somehow believes that a program has harmed him, even if, in fact, it 
has not,” in order to establish a justiciable theoretical loss.138 

After retreating to a narrower construction of injury in 
Allen,139 the Court reinvigorated its convoluted Bakke logic to allow 
standing in a series of cases brought by white plaintiffs challenging 
affirmative-action policies intended to benefit underrepresented 
minorities.  In both Northeastern Florida Chapter of the Associated General 
Contractors v. City of Jacksonville140 and Adarand Constructors, Inc. v. 
Pena,141 the Court refused to require proof that the white plaintiffs 
would have been awarded construction contracts if the set-aside 
remedial programs did not exist.  In fact, the lower court in 
Northeastern dismissed the case on the grounds that the plaintiffs 
could not make such a showing,142 as past precedent required.  In 
these cases, however, the Court disingenuously sidestepped the 
demands of stare decisis by reconfiguring the claimed injuries as 
“being forced to compete in a race-based system.”143  Once again, 
the harms alleged in these cases were merely theoretical and 
abstract—the type of “injuries” regularly held to be non-justiciable 
in other contexts.  As Professor Nichol succinctly observes, “the 
Court apparently thinks that concrete, particularized harm is less 
essential in cases alleging that government programs impermissibly 
benefit racial minorities.  In such situations, rigorous standing 
requirements do not apply.”144 

The Court continued to display a sympathetically lenient 
view of standing in the seminal University of Michigan affirmative 
action cases.  In Gratz v. Bollinger, for instance, the Court held that a 
prospective white student—Patrick Hamacher—had standing to 

                                                                                                       
137  Sunstein, supra note 14, at 203. 
138  Nichol, supra note 89, at 311. 
139  See infra Part IV.A. 
140  508 U.S. 656 (1993). 
141  515 U.S. 200 (1995). 
142  Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City 

of Jacksonville, 951 F.2d 1217, 1219 (11th Cir. 1992); see also Warth v. Seldin, 
422 U.S. 490, 516-17 (1975); Allen v. Wright, 468 U.S. 737, 746 (1984); City of 
Los Angeles v. Lyons, 461 U.S. 95, 111(1983).  

143  Ne. Fla. Chapter of Associated Gen. Contractors of Am., 508 
U.S. at 656, 666 (an injury-in-fact exists “[w]hen the government erects a 
barrier that makes it more difficult for members of one group to obtain a 
benefit than it is for members of another group”). 

144  Nichol, supra note 89, at 311-12. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 144 
  
 

challenge Michigan‟s affirmative action policy.145  In seeking 
injunctive relief, precedent required Hamacher to establish a “real 
and immediate” threat of a future injury.146  The majority found that 
Hamacher had satisfied this requirement even though he never 
applied to transfer after being initially rejected.147  Given the fact 
that Hamacher had graduated already from a neighboring college, he 
lacked the intent to transfer to the University of Michigan.148  Thus, 
it would appear that the existing precedent and interpretation of the 
injury requirement would compel the Court to find that Hamacher‟s 
claim of future injury must be dismissed as conjectural and 
hypothetical.149  The Court, however, gave short shrift to the clear 
deduction that Hamacher lacked a “personal stake” in the outcome.  
Rather, the Court strangely reasoned that “whether Hamacher 
„actually applied‟ for admission as a transfer student [was] not 
determinative” of the standing issue since Hamacher may have 
possessed a past intent to apply to the college if the admissions 
policy was eliminated.150 

The broad construction of injury and causation enjoyed by 
plaintiffs challenging affirmative action policies also has extended to 
white parents challenging public school desegregation plans.  In 
Parents Involved in Community Schools v. Seattle School District 1, the Court 
entertained claims that the desegregation plans adopted by the 
Seattle, Washington, and Louisville, Kentucky, school systems 
violated the constitutional rights of white children denied admission 
to the public school of their future choosing.151  The desegregation 
plans in question allowed children to enroll freely in neighborhood 
schools without regard to race.  The consideration of race became 
relevant only when a popular school became “oversubscribed” 
under the Seattle plan or if a school became racially imbalanced 
under the Louisville plan.152  The parents alleged an injury under 
these plans stemming from the possibility that their children 
someday would try to enroll in either an oversubscribed or a racially 
imbalanced school, and that those students may be denied 
admission based on race.153 

                                                                                                       
145  539 U.S. 244, 260-61 (2003).   
146  Id. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992). 
147  Gratz, 539 U.S. at 260-61. 
148  Id. at 286 n.5 (Stevens, J., dissenting). 
149  Id.  See also Lujan, 504 U.S. at 560. 
150  Gratz, 539 U.S. at 260-61. 
151  551 U.S. 701 (2007). 
152  Id. at 710-11. 
153  Id. at 718. 



  
145 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

When the author of this Article teaches standing to the 
students in his Federal Courts course, he often assigns a more 
detailed factual summary of the Parents Involved decision to use as a 
classroom exercise.  The students invariably have concluded—based 
on their analysis of the seminal standing cases reviewed during the 
semester—that the plaintiffs in Parents Involved have not satisfied the 
standing requirements of Article III.  These students—quite bright 
and engaged for their part—confidently proclaim that standing fails 
on these facts since the claimed injury is merely speculative and 
conjectural, in the same vein of the Lujan and Allen decisions.  
However, these students are quickly disabused of their enchantment 
for the law of standing when they are informed that the Court found 
that this case satisfied the requirements for standing. 

Relying on a very broad interpretation of the alleged injury, 
the Roberts Court found that the white parents had standing in 
Parents Involved.  The injury, according to the Court, remains even if 
the plaintiffs‟ children never decide to apply to a school subject to a 
desegregation plan, or even if those children apply but are not 
denied admission to the school of their choosing.154  Thus, the 
Court did not frame the injury as an actual or “real and immediate 
threat” of a denial of admission based on race.155  Rather, the Court 
relied on its past anti-affirmative action standing decisions to 
conceive of the injury broadly as “being forced to compete in a race-
based system that may prejudice the plaintiff.”156  Framed as such, 
the Court found little trouble in identifying an injury sufficient for 
Article III purposes. 

The framework that the Court established to adjudicate 
issues of standing does not readily explain or justify results in these 
cases.  The analysis of standing in cases claiming racial harms to 
white plaintiffs suffers from an overly broad visualization of injury-
in-fact, causation, and redressability.  In contrast, the analysis of 
standing in cases presenting injuries to non-white plaintiffs 
challenging structures of racial inequality fails due to an 
unnecessarily narrow interpretation of the standing requirements.  
The indeterminacy plaguing standing doctrine, however, does not 
fully explain the Court‟s protection of economic and racial privilege. 

 

                                                                                                       
154  Id. at 718-19. 
155  See, e.g., Allen v. Wright, 468 U.S. 737, 758 (1984); Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 583 (1992). 
156  Parents Involved, 551 U.S. at 719 (citing Adarand Constructors, Inc. 

v. Pena, 515 U.S. 200, 212 (1995) and Ne. Fla. Chapter of Associated Gen. 
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 146 
  
 

IV. THE FIRST PRINCIPLES OF MODERN STANDING 

DOCTRINE 
 

The failure of structural theories of justiciability to give 
purpose and meaning to the law of standing, coupled with the 
doctrine‟s remarkable indeterminacy, inexorably leads to one 
question:  What is guiding the content of standing jurisprudence?  
Phrased differently, what are the social forces, values, and principles 
that influence judicial decision-making on standing issues?  As has 
been discussed, the Court‟s standing jurisprudence indicates hostility 
to the rights and injuries of non-white plaintiffs, while displaying 
sympathy for the rights and injuries of white plaintiffs.  As Professor 
Nichol observes: 

Minority plaintiffs, poor litigants, unwed mothers, 
black prisoners, and indigent patients get the harshest 
treatment in injury law.  Their burdens are higher, 
their barriers more substantial. They must prove 
greater consequential harms, must show closer 
causation links, and must surmount greater 
redressability hurdles.  Article III determinations are 
driven neither by text nor history. They favor the 
powerful.  They disadvantage the powerless.  And in 
the process, they don‟t explain why they do so.157 

The one predictable aspect of the Court‟s standing doctrine 
thus appears to be the protection of racial and economic privilege.158 

 
A. Social Justification Theory, Privilege, and Threats to the 

Status Quo 
 

The conclusion that standing doctrine submits to the 
demands of privilege is supported by the findings of social 
psychology.  System Justification Theory (“SJT”), a well-respected 
and empirically-tested field of social psychology, posits that “people 
are motivated to accept and perpetuate features of existing social 
arrangements, even if those features were arrived at accidentally, 
arbitrarily, or unjustly.”159  The central premise of SJT therefore 
follows the classic Marxian view that members of the elite class have 

                                                                                                       
157  Nichol, supra note 89, at 333. 
158  See id. 
159  Gary Blasi & John T. Jost, System Justification Theory and Research: 

Implications for Law, Legal Advocacy, and Social Justice, 94 CALIF. L. REV. 1119, 
1124 (2006). 



  
147 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

an ideological interest in preserving current social structures.160  
While members of the subordinated class have an interest in 
subverting the social system, this interest is sublimated by an 
internalized “false consciousness” that cloaks inequality while 
legitimizing the status quo.161 

SJT incorporates these insights in an effort to analyze the 
social tendency to rationalize the status quo and perceive existing 
legal, social, economic, and political arrangements as “fair and 
legitimate.”162  According to numerous empirical studies, individuals 
are motivated to justify the status quo for several reasons, including 
a “cognitive-motivational need to believe in order, structure, closure, 
stability, predictability, consistency, and control.”163  Additionally, 
studies have demonstrated that “there are social norms that serve to 
uphold system-justifying responses and punish system-challenging 
responses.”164  Those daring few who challenge system expectations 
and stereotypes are met with public backlash and ridicule.165 

The tendency to engage in system-justification depends, to 
varying degrees, on both situational and dispositional factors.166  
These tendencies will be activated to the extent that a person feels 
the need to reduce uncertainty and system threat, or when the status 
quo is directly or indirectly challenged.167  Perhaps unsurprisingly, 
studies in SJT have demonstrated that individuals with conservative 

                                                                                                       
160  See generally Anthony Paul Farley, The Colorline as Capitalist 

Accumulation, 56 BUFF. L. REV. 953 (2008). 
161  See generally id. 
162  John T. Jost & Orsolya Hunyady, Antecedents and Consequences of 

System-Justifying Ideologies, 14 CURRENT DIRECTIONS IN PSYCHOL. SCI. 260, 260 
(2005). 

163  Aaron C. Kay et al., Panglossian Ideology in the Service of System 
Justification: How Complementary Stereotypes Help Us to Rationalize Inequality, 39 
ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 305, 308 (2007). 

164  Id. 
165  Id. (citing studies). 
166  John T. Jost et al., System Justification as Conscious and Nonconscious 

Goal Pursuit, in HANDBOOK OF MOTIVATION SCIENCE 591, 592 (James Y. 
Shah & Wendi L. Garner eds., 2008) [hereinafter Jost et al., Goal Pursuit].  See 
also Blasi & Jost, supra note 159, at 1138; John T. Jost et al., Shared Reality, 
System Justification and the Relational Basis of Ideological Beliefs, 2 SOC. & 

PERSONALITY PSYCHOL. COMPASS 171, 172 (2007) (“[P]eople defend and 
bolster the legitimacy of the societal status quo following exposure to various 
manipulations of system threat, including exposure to . . . crises of legitimacy 
or stability in society.”). 

167  See Blasi & Jost, supra note 159, at 1123. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 148 
  
 

viewpoints are more likely to express system-justifying attitudes than 
individuals with a self-described progressive or liberal viewpoint.168 

The appeal of system justification is straightforward:  It 
provides a coping mechanism for persons confronted with systemic 
inequality by „reducing anxiety and uncertainty.‟169  This finding is 
similar to the psychological concept of “cognitive dissonance,” 
which holds that people suffer from psychological tension when 
confronted with ideas that conflict with their own beliefs.170  As the 
author of this Article has stated previously in the reparations 
context: “Confronting privilege creates cognitive dissonance by 
acknowledging that benefits and advantages received were not 
necessarily the result of merit and hard work, while exposing the 
deeply held values that have supported privilege.”171  Indeed, the 
“potential psychic damage to privilege holders forces most to ignore 
and suppress alternative explanations for their status that depart 
from the assumption of naturalness and neutrality.”172  Therefore, 
holders of privilege have a strong motivation to express system-
justifying attitudes, as “[a]cceptance of traditional distinctions tend 

to reduce cognitive dissonance.”173  The palliative function of system 
justification that SJT identifies thus maps neatly onto the critical 
observation of the role that cognitive dissonance plays in the 
maintenance of privilege.174 

Studies in SJT also have established that individuals faced 
with system threat “may not even be aware of the extent to which 

                                                                                                       
168  Id. at 1126. 
169  Id. at 1141. 
170  See generally LEON FESTINGER, A THEORY OF COGNITIVE 

DISSONANCE (1957). 
171  Christian B. Sundquist, Critical Praxis, Spirit Healing and Community 

Activism: Preserving a Subversive Dialogue on Reparations, 58 N.Y.U. ANN. SURV. 
AM. L. 659, 675-76 (2003). 

172  Peggy McIntosh, White Privilege and Male Privilege: A Personal Account 
of Coming to See Correspondences Through Work, in WOMEN‟S STUDIES, IN POWER, 
PRIVILEGE AND LAW: A CIVIL RIGHTS READER 22, 23 (Leslie Bender & Dana 
Braveman eds., 1995).  See also James Thuo Gathii & Greg Mandel, Cost-Benefit 
Analysis Versus the Precautionary Principle: Beyond Cass Sunstein’s Laws of Fear, 2006 
U. ILL. L. REV. 1037, 1049 n.53 (2006) (noting that the presence of cognitive 
dissonance encourages people to take steps to eliminate the psychological 
conflict, often by changing their preferences or beliefs).  

173  Sunstein, supra note 78, at 1147. 
174  The palliative function of system justification “provides a simple 

and easy way of meeting a variety of psychological needs.  Threats to the 
legitimacy or stability of the system, on the other hand, may elicit feelings of 
anxiety, uncertainty, and dissonance concerning one‟s role in the larger 
system.”  Jost et al., Goal Pursuit, supra note 166, at 598.  



  
149 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

they are privileging the status quo and resisting change.”175  Such 
attitudes are “especially likely to be manifested implicitly rather than 
explicitly” given that “some forms of system justification efforts are 
not normatively acceptable, such as stereotyping of and 
discrimination against low-status groups.”176  The conclusion that 
system-justifying attitudes are often unconsciously expressed tracks 
the critical observation that discriminatory racial attitudes are often 
the product of unconscious processes.177 

 
B. From the Descriptive to the Normative:  SJT, Critical 

Theory, and the Law of Standing 
 

The insights provided by SJT are invaluable to 
understanding the indeterminacy that has come to define standing 
doctrine.  The concepts within SJT provide the necessary empirical 
tools to deconstruct and analyze the privileging effects of standing 
law.  The subjective structure of standing law encourages the 
expression of system-justifying attitudes and norms, and it also 
accounts for the varying interpretations of injury, causation, and 
redressability adopted by the Supreme Court. 

The issues of racial and economic inequality faced by the 
Court, including affirmative action, desegregation, integration, and 
racial profiling, surely qualify under SJT as actual or perceived 
“system threats” challenging the status quo.  The Court‟s anti-
affirmative action and desegregation jurisprudence provides a salient 
example.  The policies involved in those cases posed threats to the 
legitimacy of the system by exposing pervasive inequality and 
discrimination in the distribution of resources, education, and 
employment.  These situational antecedents can in turn trigger a 
cognitive-motivational need to utilize system-justifying schemas—
such as meritocratic, fair market, or “social dominance” 

                                                                                                       
175  Jost et al., Goal Pursuit, supra note 166, at 596 (citing “several 

studies” that have confirmed the “unconscious operation of system-justifying 
biases”). 

176  Id. 
177  See, e.g., Charles Lawrence, The Id, the Ego, and Equal Protection: 

Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987) 
(“Traditional notions of intent do not reflect the fact that decisions about 
racial matters are influenced in large part by factors that can be characterized 
as neither intentional—in the sense that certain outcomes are self-consciously 
sought—nor unintentional—in the sense that the outcomes are random, 
fortuitous, and uninfluenced by the decisionmaker‟s beliefs, desires, and 
wishes.”); Donna Young, Racial Releases, Involuntary Separations, and Employment 
at Will, 34 LOY. L.A. L. REV. 351, 398 (2001) (noting that “the courts have 
been unable to properly address the „unconscious‟ component of racism”). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 150 
  
 

ideologies—in order to justify inequality and rationalize the status 
quo.178 

Exposure to such system distortions can lead to tears in the 
shroud of false consciousness that can be mended only through 
rationalization of existing inequality and resistance to changes in the 
status quo.179  These psychological processes often—but certainly 
not always—occur at an unconscious level.  They can lead decision 
makers to suppress alternative explanations of inequality that 
conflict with their particular worldview in order to avoid the psychic 
pain of recognizing privilege.  In particular, studies have 
demonstrated that the process of rationalization is often marked by 
the tendency to “accept meritocratic explanations for inequality and 
to blame individuals rather than systems for the existence of 
poverty.”180 

The reduction of cognitive dissonance is enabled by the 
indeterminate nature of the standing requirements.  As we have 
seen, the determination of injury, causation, and redressability are 
“normative endeavors,” informed by the “sense of unity and 
identity” of the decision maker.181  A recognition of the language of 
“transcendental nonsense”182 employed by the Court in its standing 
decisions accounts for the hostility shown to injuries claimed by 
non-white plaintiffs challenging racial inequality.  The Court simply 
cannot empathize with injuries and claims that conflict with its 
colorblind view of the world.  The Court‟s narrow construction of 
injury, causation, and redressability in these cases alleviates the 
psychological distress caused by its being confronted with images of 
privilege and inequality.  Simply put, the Court finds solace in 
viewing challenges to racial hierarchy as fantastical conjecture having 
little bearing to “real-world” injuries-in-fact. 

For example, the harms alleged by the plaintiffs in Lyons 
posed a strong threat to the status quo appearance of race neutrality 

                                                                                                       
178  See Jost & Hunyady, supra note 162, at 260-61. 
179  Id. 
180  Tom R. Tyler & John T. Jost, Psychology and the Law: Reconciling 

Normative and Descriptive Accounts of Social Justice and System Legitimacy , in SOCIAL 

PSYCHOLOGY: HANDBOOK OF BASIC PRINCIPLES 816 (A.W. Kruglanski & 
E.T. Higgins eds., 2007) (citations to corroborating studies omitted).  The 
reduction of cognitive dissonance also is often accompanied by a belief in free-
market ideology and the perception that market-based outcomes are efficient 
and fair.  Id. 

181  See, e.g., JOSEPH VINING, LEGAL IDENTITY: THE COMING AGE OF 

PUBLIC LAW 171 (1978); Fletcher, supra note 3, at 221-23 (1988); Nichol, supra 
note 89, at 322-24. 

182  See Cohen, supra note 8, at 812. 



  
151 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

by exposing widespread practices of racial profiling.183  A 
recognition of these injuries as “real” and “concrete” conflicted with 
the Court‟s belief in colorblindness and equal opportunity—that 
law-abiding individuals are generally treated equally by law 
enforcement, without regard to race.184  In other words, it conflicted 
with the belief, that the system is just and fair, and that racism is a 
mere aberration rather than a systemic flaw.185  The Court resolved 
the cognitive dissonance created by this ideological conflict by 
narrowly construing the standing requirements as preventing 
“speculative” allegations of systemic failure.186  To view pervasive 
racism and police mistreatment of black men as a speculative and 
“discrete practice” is to view racial discrimination as aberrational 
and non-threatening to the status quo. 

The system justification discourse on standing doctrine also 
explains why the Court is willing to embrace cases brought by white 
plaintiffs seeking to maintain the status quo of race neutrality and 
professed post-racialism.  The Court reduces the cognitive costs 
implicit in any confrontation of privilege by striking down race-
regarding measures in the name of equal opportunity, meritocracy, 
and colorblindness.  Rationalization of the status quo leads to 
empathy for members of the dominant group, whose allegations of 
injury are re-interpreted by the Court as efforts to dispel threats to 
the status quo.  Therefore, the Court invokes the system-
maintaining ideologies of equal opportunity, colorblindness, white 
innocence, meritocracy, and individualism to inform its standing 
analysis, as well as to rationalize the conclusion that otherwise 
speculative and hypothetical injuries satisfy the justiciability 
requirements. 

For instance, the Court‟s decisions in Bakke and Parents 
Involved clearly demonstrate the Court‟s readiness to act on system 
justification motives in order to protect the status quo.  The plaintiff 
in the Bakke case sought to eliminate a serious threat to the 
system—race-regarding admission policies that sought to remedy 
current and past discrimination and stem the rising tide of inequality.  
The affirmative action policy at issue conflicted with numerous 

                                                                                                       
183  City of Los Angeles v. Lyons, 461 U.S. 95, 98 (1983). 
184  See id. at 108 (holding that “it is untenable to assert, and the 

complaint made no such allegation, that strangleholds are applied by the Los 
Angeles police to every citizen who is stopped or arrested regardless of the 
conduct of the person stopped”). 

185  RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE 

THEORY: AN INTRODUCTION 7 (2001) (noting that a basic tenet of critical race 
theory is that “racism is ordinary, not aberrational”). 

186  Lyons, 461 U.S. at 109. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 152 
  
 

“system-justifying ideologies,”187 such as a belief in meritocracy,188 
individualism, a fair market,189 natural economic and racial 
inequality,190 colorblindness, equal opportunity, and social 
dominance.191  As noted earlier,192 it was undisputed in Bakke that 
the plaintiff could not demonstrate that he would have been 
admitted to the medical school at UC-Davis but for the existence of 
the remedial admissions policy.193  Despite the speculative and 
hypothetical nature of Bakke‟s “injury,” which otherwise the Court 
would have deemed as non-justiciable under precedent, the Court 
sympathized with the discrimination facing “disadvantaged 
whites”194 and permitted the attempt to preserve the status quo.  
The Court rationalized its finding of standing by re-framing the 
injury as a threat to the status quo of equal opportunity.195   

The seemingly benign framework of equal opportunity was 
invoked by the Court as an antecedent to system justification.196  As 
the author of this Article has contested previously, 

The story of equal opportunity [holds that] the paradigm 
of equal opportunity is a truly objective, neutral, and fair 
method to allocate educational, employment, and 
political resources to members of society, without 
regard to race, class, gender, or ethnicity.  The ideal of 
equality assumes the possibility of an objective measure 
of merit under which individuals‟ abilities and 
performances may be evaluated.  Accordingly, through 
the creation of a baseline that presupposes the inherent 
sameness of all people and disregards systemic 
discrimination as a fallacy, any social and economic 
inequality that exists is said to be legitimate because it 

                                                                                                       
187  Jost & Hunyady, supra note 162, at 261 tbl.1. 
188  Id. (belief that “[t]he system rewards individual ability and 

motivation, so success is an indicator of personal deservingness”). 
189  Id. (belief that “[m]arket-based procedures and outcomes are not 

only efficient but are inherently fair, legitimate and just”). 
190  Id. (belief that “[e]conomic inequality is natural, inevitable, and 

legitimate; economic outcomes are fair and deserved”). 
191  Id. (belief that “[s]ome groups are superior to others; group-based 

hierarchy is a good thing”). 
192  See supra Part III.B. 
193  Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 267-77 (1978).  
194  Id. at 276. 
195  See id. at 280, n.14 (reframing the injury as being denied the 

opportunity to “compete for all . . . places in the class, simply because of his 
race”). 

196  See Jost & Hunyady, supra note 162, at 261. 



  
153 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

purportedly reflects the natural results of deficient 
personal choices.197 

In using the rhetoric of equal opportunity, the Court‟s re-
framing of the injury is a veiled attempt to preserve existing patterns 
of inequality.198  The Court uses ideological language to translate the 
injury from one involving a mere denial of admission to one 
implicating the fairness of the social system as a whole.  The former 
injury was clearly conjectural, yet the latter framing of the injury 
appeared to the Court to constitute a real and concrete threat to the 
status quo.  The Court found standing through a process of 
rationalization in its effort to ease the guilty pangs of conscience that 
comes with viewing inequality. 

The Court‟s decision in Parents Involved199 similarly relied on 
system-justifying ideologies to uphold standing by broadly reframing 
the alleged injuries.  The plaintiffs in that case sought to undo the 
desegregation plans adopted by schools in racially segregated cities.  
The alleged injury was clearly speculative and conjectural under 
precedent.  It merely alluded to the possibility that the plaintiffs‟ 
children may someday try to enroll in the desegregating schools, and 
that those students may also be denied admission under the plan.200  
However, the Court viewed these harms as threats to the status quo 
and its underlying ideologies of individualism, colorblindness, and 
meritocracy.  The Court was enamored with individual stories of 
“white innocence” and equal opportunity during its analysis201 and 

                                                                                                       
197  Christian B. Sundquist, Equal Opportunity, Individual Liberty, and 

Meritocracy in Education: Reinforcing Structures of Privilege and Inequality, 9 GEO. J. 
ON POVERTY L. & POL‟Y 227, 228-29 (2002). 

198  Id. at 229.  (“I disagree with the conception of equal opportunity 
as an objective, neutral, natural, and fair principle that enables social minorities 
to progress in society, limited only by their own ability and free choices.  
Rather, equal opportunity is an intricate fabrication intended to preserve the 
status quo and language of the dominant culture through reliance on popular, 
yet mythical, norms of individualism, sameness, and neutrality.”). 

199  Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. 1, 551 U.S. 
701 (2007). 

200  Id. at 718-19.  The “complaint sought declaratory and injunctive 
relief on behalf of Parents Involved members whose elementary and middle 
school children „may be denied admission to the high schools of their choice 

when they apply for those schools in the future.‟ ” Id. at 718 (emphasis added).  
The Court still granted standing, finding that “[t]he fact that it is possible that 
children of group members will not be denied admission to a school based on 
their race . . . does not eliminate the injury claimed.”  Id. at 718-19.  

201  See supra note 200 and accompanying text.  Professor Thomas 
Ross has argued that concepts of white innocence, even if unintentional, 
pervade the American court system as exemplified by legal rhetoric affording 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 154 
  
 

strove to find a way to uphold the “private choices” of white 
parents to live in racially segregated neighborhoods.202 Using 
system-justifying ideological tools, the Court reframed the claimed 
injury as a response to the systemic threat of desegregation.203 

 
C. The First Principles of Standing Law 

 
The law of standing appears to be intelligible only through 

the schema of privilege.  The tripartite standing framework 
developed by the Court is an attempt to demarcate the often times 
nebulous space between ideological discourse and objective legal 
thought.  The legitimacy of standing law derives in part from a 
denial of the political contingency of the representational metaphors 
upon which it relies.204  The interpretation of the injury-in-fact, 
causation, and redressability tropes is inevitably value-laden, 
normative, and system-justifying.  The foundational first principles 
of standing doctrine thus are characterized by a belief in the 
legitimacy and fairness of the existing distribution of social 
resources: 

1) perpetuation of the existing structures of racial, 
economic, and social privilege in maintenance of 
the status quo, and 

2) distortion and rationalization of images of 
inequality through the use of metaphorical 
ideological devices. 

Recognition of these foundational principles provides an 
unfortunate determinacy to the law of standing that was previously 

                                                                                                       
whites a lack of culpability and simultaneously abstracting black disadvantage 
to an impersonal level, thereby denying the full humanness of blacks.  Thomas 
Ross, The Rhetorical Tapestry of Race: White Innocence and Black Abstraction, 32 WM. 
& MARY L. REV. 1, 3-4 (1990).  

202  Parents Involved, 551 U.S. at 736 (“Where resegregation is a product 
not of state action but of private choices, it does not have constitutional 
implications.”) (quoting Freeman v. Pitts, 503 U.S. 467, 495 (1992)). 

203  See id. at 719 (“[O]ne form of injury under the Equal Protection 
Clause is being forced to compete in a race-based system that may prejudice 
the plaintiff, an injury that the members of Parents Involved can validly claim 
on behalf of their children.”) (internal citations omitted). 

204  Professor Gary Peller observes that “[l]egal thought distinguishes 
from open-ended ideological discourse by implicitly denying the contingency 
of the representational metaphors, such as the public/private or fact/value 
distinctions, on which its persuasiveness depends.  When these background 
structures are taken as that „which goes without saying,‟ they work as 
metaphysical assumptions about the world.”  Peller, supra note 1, at 1154. 



  
155 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

lacking and which could not be accounted for by the traditional 
normative justifications for standing doctrine.  The guiding 
principles of standing law are granted normative power through the 

invocation of various system-justifying modalities:  individualism 
and the reification of private rights, equal opportunity and the 
victimology of white innocence, colorblind constitutionalism and 
post-racialism, and meritocracy and free market ideology.205 

There is an additional limitation on standing law, which is 
based on the principle that the process of system justification will 
not be activated if it is within the interest of the dominant social 
group to redefine the status quo.206  This limitation on standing 
doctrine tracks both the psycho-legal concept of “interest 
convergence” and SJT‟s theory of “inevitable change.”  The concept 
of “interest convergence” was first developed by Professor Derrick 
Bell and posits that the interests of the subordinated class in 
reducing or eliminating inequality will be accommodated only when 
they converge with the interests of the elite class.207  This theory is 
similar to SJT‟s finding that system justification tendencies are 
avoidable if a change in the status quo appears to be inevitable.208  
As Professor Jost notes, “[a]lternatives to the status quo may be 
derogated when they are considered improbable, but they may 
become much more attractive as their probability of success 
increases.”209   

A basic formula can describe the interplay between the 
concepts.  The likelihood of a judge expressing system-justification 
tendencies in order to preserve the status quo condition of privilege 
(LP) depends on an assessment of the judge‟s level of cognitive 
dissonance (CD) balanced against the persuasive power of the 
alternative account for inequality (AA).  Breaking down the 
components further, 

                                                                                                       
205  See generally Jost & Hunyady, supra note 162, at 261. 
206  See infra Part III. 
207  See generally DERRICK BELL, FACES AT THE BOTTOM OF THE 

WELL: THE PERMANENCE OF RACISM (1993). 
208  See Jost et al., Goal Pursuit, supra note 166, at 600. 
209  Id. 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 156 
  
 

LP (likelihood of preserving privilege) = CD (level of 
cognitive dissonance) [perceived system threat (T) + 
dispositional need for structure and order (N)] / AA 
(persuasive power of the alternative account) [level of 
interest convergence (IC) + perceived inevitability of 
system change (PI)], or 
 

 
 
The above formulaic expression of the likelihood of a court 

expressing system justifying attitudes is not a backdoor attempt to 
resurrect a new legal formalism.210  Rather, a visual account of the 
various factors that are relevant to system justification helps to 
clarify the steps that can be taken to reduce or eliminate the 
propensity of judges to shape their decisions in an effort to protect 
the status quo.  Advocates could attempt to downplay the court‟s 
perception of system threat (T) in a given case.  Advocates could try 
to persuade a court of the inevitability of system change (PI), 
arguing that it is within the interest of the dominant group to 
redefine the status quo (IC).  However, it is unrealistic that 
advocates could achieve substantive change by playing within the 
rules of a hopelessly flawed legal framework. 

 
V. BEYOND THE “TRANSCENDENTAL NONSENSE” OF 

STANDING 
 

The failings of standing doctrine cannot be resolved by 
modifying the existing framework, redefining terminology,211 
focusing on legal injury rather than factual injury,212 making a 

                                                                                                       
210  See, e.g., Thomas C. Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 

1, 13 (1983) (recounting Christopher Columbus Langdell‟s view of law as a 
science). 

211  See Susan Bandes, The Idea of a Case, 42 STAN L. REV. 227, 230 
(1990) (arguing that standing law should shift from an individualistic, private 
rights model to a public law model that focuses on adjudicating constitutional 
questions). 

212  Sunstein, supra note 14, at 166 (arguing that the “relevant question 

is [not whether there was an “ „injury-in-fact,‟ but] whether the law—governing 

CD (T + N) 

AA (IC + 
PI)

LP



  
157 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

distinction between private and public rights,213 instituting a 
presumption favoring the plaintiff‟s claim of injury,214 or relaxing the 
requirement of injury-in-fact.215 The convoluted doctrine that 
evolved from the Court‟s disingenuous interpretation of “case” or 
“controversy” must be forsaken completely.  Merely modifying the 
requirements of standing will do little to guard against privilege and 
political decision-making.  Instead, the entire language of standing 
must be removed from the judicial toolbox. 

A number of well-regarded academics have suggested 
altering the framework to account for privilege by creating a 
presumption in favor of standing.216  This proposal would eliminate 
the existing set of standing rules, requiring only that the plaintiff 
demonstrate a “real adversity” with the defendant and a reasonably 
“concrete” factual record.217  A court still would be able to deny 
standing in certain situations, when “strong reasons are brought to 
bear against its exercise.”218  According to its proponents, the 
benefits of this approach lie in its potential to restrain ideological 
decision-making through a relaxation of the injury-in-fact 
requirement.219 

While the privilege-constraining aims of this approach are 
certainly laudable, it does not appear that this modified standing test 
would do much to eliminate ideological decision-making.  The 
“presumption” approach does not address the psychological triggers 
of system-justifying judicial behavior, nor does it remove the use of 

                                                                                                       
statutes, the Constitution, or federal common law—has conferred on the 
plaintiffs a cause of action”); see also Fletcher, supra note 3, at 812. 

213  F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 
CORNELL L. REV. 275, 275 (2008) (“[R]equiring a showing of factual injury in 
private rights cases is ahistorical and actually undermines the separation of 
powers by preventing the courts from guarding rights and by limiting 
Congress‟s powers to create rights.”). 

214  Nichol, supra note 89, at 338, 339-40 (arguing that “[t]he injury 
inquiry should embrace a significant presumption in favor of the plaintiff‟s 
claim of harm”). 

215  Siegel, supra note 59 (advocating for a reform of standing law by 
relaxing standards). 

216  Mark V. Tushnet, The Sociology of Article III: A Response to Professor 
Brilmayer, 93 HARV. L. REV. 1698, 1705-07 (1980); Nichol, supra note 89, at 
305, 339. 

217  Tushnet, supra note 216, at 1706. 
218  Nichol, supra note 89, at 339. 
219  Id. (“A generous predisposition towards finding injury would also 

go far to dismantle the artificial categories of injury that have rendered the 
Court‟s standing jurisprudence one of the most manipulated, result-oriented 
arenas of constitutional law.”). 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 158 
  
 

ambiguous standards and language from the standing calculus.  How 
does one decide which cases satisfy the presumption and which do 
not?  What guidelines should a court apply in determining whether 
to invoke the discretionary exception to reject standing?  Under this 
approach, it is easy to envision the possibility of ideologically-based 
denials of standing on the purported grounds that the plaintiffs 
failed to proceed either because they failed to generate a sufficiently 
“concrete” factual record or because “strong policy reasons” militate 
against standing.220  By exchanging one malleable standard for 
another, the proposal merely changes the language used to 
rationalize decisions on standing that privilege white victims. 

Another notable approach to standing reform argues that 
the issue of standing should be linked to the substantive merits of a 
case.221  Relying on observations that the current standing 
framework is a mere proxy for the Court‟s ideological view of the 
merits of a case, the “substantive” approach argues that the test for 
standing instead should be based entirely on the presence of a 
judicially-cognizable legal injury.222  In particular, this approach 
advocates that the courts should defer to congressional 
determinations of statutory standing.223  The proposal acknowledges 
that a substantive test for standing will not eradicate political 
decision-making completely, 224 but that this approach would reduce 
the potential for judicial mischief by barring courts from making 
normative-based standing decisions.  The substantive approach ties 
the standing analysis to the presence of substantive constitutional, 
statutory, and common-law rights. 

This proposal suffers from the familiar failings of normative 
interpretation and linguistic ambiguity.  By linking standing to the 
determination of substantive rights, the proposal merely replaces 

                                                                                                       
220  See Staudt, supra note 89, at 672-73.  Professor Staudt relies on 

empirical data to conclude that the presumption approach to reform would 
not constrain political decision-making in the standing context. 

221  See Fletcher, supra note 3, at 223; Cass R. Sunstein, Informational 
Regulation and Information Standing: Atkins and Beyond, 147 U. PA. L. REV. 613, 
616-17 (1999). 

222  Fletcher, supra note 3, at 229 (arguing that the question of whether 
a plaintiff has a “legal right to judicial enforcement of an asserted legal duty . . . 
should be seen as a question of substantive law”). 

223  Sunstein, supra note 14, at 191 (“whether an injury is cognizable 
should depend on what the legislature has said”). 

224  Cf. Sunstein, supra note 221, at 616-17 (arguing that, with respect 
to cases involving standing to obtain information, “the question of standing is 
for congressional rather than judicial resolution . . . . If Congress creates a legal 
right to information and gives people the authority to vindicate that right in 
court, the standing question is essentially resolved.”). 



  
159 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

one kind of indeterminacy with another.  The interpretation of 
constitutional and statutory substantive rights has long been rife 
with inconsistency and normativity.  The tremendous judicial 
discretion involved in the analysis of constitutional and statutory 
language gives rise to ideological game-playing and system 
rationalization.  The interpretation of language deemed to be 
“ambiguous” is often dependent on the application of contested and 
conflicting canons of construction, which themselves often 
represent a particular ideological position.  Even when the law is not 
ambiguous, courts often find reason to go beyond the plain meaning 
of language in order to advance a particular political agenda.225  As 
Professor Staudt has noted, “[d]eferring to substantive law . . . does 
not foreclose judicial discretion.”226  By relying on a false 
substantive-procedural distinction, the substantive approach simply 
does not lead us out of the mire of incoherence. 

If the principal reform proposals are lacking, then how 
should we change the law to account for its tendency to promote 
privilege normatives?  How can we modify the law to reduce or 
eliminate the system-justifying tendencies of judges?  The answer 
lies in not merely changing the standing inquiry, but in eliminating it 
altogether.  Standing doctrine is mandated neither by the text nor 
the history of Article III.  It consists of a subjective set of criteria 
that can be manipulated by perceptions of system threat to 
rationalize inequality and deny access to justice to those at the 
“bottom of the well.”227  The law of standing cannot be modified to 
eliminate privilege, as the language of access necessarily is imbued 
with political meaning.  The words and phrases used to convey the 
notion of standing—whether in its original or reformed position—
are infinitely malleable and veil the operation of privilege.  The 
privileging aspects of standing are rarely recognized or “seen” by the 
courts, as privilege itself is shaped by societal norms deemed neutral 
and objective by the dominant group.  The law of standing 
nonetheless serves to normalize privilege and rationalize existing 
social inequality. 228  Thus, the concept of standing must be 
discarded in its entirety. 

                                                                                                       
225  For instance, consider the “cases” and “controversies” language 

of Article III.  See U.S. CONST. art. III.  The language can be given a clear and 
unambiguous interpretation that does not give rise to a constitutional 
requirement of standing. 

226  Staudt, supra note 89, at 680. 
227  BELL, supra note 207.  
228  Stephanie M. Wildman & Adrienne D. Davis, Making Systems of 

Privilege Visible, in PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE 

UNDERMINES AMERICA 7-24 (Stephanie Wildman et al. eds., 1996) (arguing 



 
2011  COLUMBIA JOURNAL OF RACE AND LAW 160 
  
 

VI. CONCLUSION 
 
Professor Derrick Bell once implored that we should look 

to “the bottom of the well” in judging law:  If a law does not benefit 
the most disadvantaged of society, it should be rejected.229  
Accordingly, the law of standing should be rejected.  Standing 
requirements only serve to rationalize existing inequality while 

masking the reproduction of privilege.  The evaluation of 
redressable legal injuries is necessarily a value-laden and subjective 
process, which is influenced by the social position, past experiences, 
and worldview of individual judges. 

The Court has demonstrated, in the affirmative action and 
desegregation contexts, a willingness to wield the submissive sword 
of standing to cut down threats to the status quo and privilege.  As 
the empirical findings of System Justification Theory demonstrate, 
the Court often invokes the law of standing to rationalize and 
normalize system-justifying responses to perceived system threats.  
The Court denies standing routinely in cases advancing the rights of 
non-white plaintiffs, as the Court myopically sees the injuries 
claimed as too speculative and disconnected from the experiences of 
individual justices to qualify for judicial review under Article III.230  
Conversely, the Court strains to locate “injuries” in cases involving 
the racialized claims of white plaintiffs, even when such claims 
would seem to be insufficient for Article III review under prior case 
law.231  Therefore, the law of standing, for these and other reasons, 
is widely acknowledged as being hopelessly incoherent. The 
infamous indeterminacy of standing law, however, can be provided 
some coherence once it is acknowledged that judicial decision-
making is heavily influenced by perceived threats to the racial status 
quo.  The Court‟s standing jurisprudence in cases involving racial 
injuries is therefore determinable and predictable not by precedent 
or the language of Article III, but by the nature and extent of the 
perceived system threat.  To put it bluntly, the Court is as likely to 
minimize the injuries of plaintiffs seeking to challenge racial 
inequality, as it is to generously construe the injuries of plaintiffs 
seeking to preserve existing structures of racial hegemony (e.g., 
segregation, discrimination, profiling). 

                                                                                                       
that privilege appears as part of the normal fabric of daily life and becomes a 
world to which those without privilege must adjust.). 

229  See generally BELL, supra note 207. 
230  See supra Part III.A. 
231  See supra Part III.B. 



  
161 THE FIRST PRINCIPLES OF STANDING Vol. 1:1 
 
 

Reform proposals focused on massaging the language of 
standing requirements, while nonetheless retaining “standing” as a 
limit to justiciability, are not sufficient to mediate the system-
justifying preferences of the courts.  The language of standing 
doctrine is simply too malleable and value-laden to be co-opted for 
the inapposite purpose of defeating privilege.  Rather, standing 
doctrine as a whole must be eliminated as a barrier to social justice 
and the ability of the non-privileged to assert substantive rights.  
There is simply no constitutional justification for retaining the 
embattled requirement of standing as a limit on federal court access. 

Moreover, the sky will not fall once standing limitations are 
eviscerated, counter to the expected claims of defenders of the 
existing legal framework.  Our federal court system operated 
smoothly for nearly two hundred years before our understanding of 
“cases” and “controversies” became clouded with unworkable tort 
concepts like “injury-in-fact,” “causation,” and “redressability.”232  
While the federal judiciary may find themselves short an arrow in 
their quiver of justiciability, there are still many procedural tools 
remaining to dispose of meritless and fantastical claims.233  
Additionally, courts still will be free to resort to a multitude of 
prudential, sub-constitutional mechanisms to promote efficient 
judicial review.234  The practical result of eliminating standing from 
the justiciability calculus, thus, would not be to open the 
“floodgates” inappropriately to federal judicial review, but rather to 
expand federal court access for non-white litigants seeking judicial 
protection of important constitutional and statutory rights.  As 
Justice Brennan implored in his dissent in McClesky v. Kemp, we must 
not continue to retain a flawed framework of constitutional 
adjudication out of a “fear of too much justice.”235 

                                                                                                       
232  See supra Part II. 
233  For instance, federal courts have the power to entertain motions 

for dismissal and summary judgment.  See FED. R. CIV. P. 12(b)(6) & 56. 
234  See supra note 29 and accompanying text (noting several 

prudential, sub-constitutional standing limitations, including the zone of 
interests test, the generalized grievances limitation, and restrictions on third-
party standing). 

235  481 U.S. 279, 339 (1987) (Brennan, J., dissenting).