December 20, 2005

Yale and Alito on Standing

On my birthday (yesterday), I spent part of the day reading the report of the Yale “Alito project,” which claims to reveal Alito’s conservative biases. Here’s how the report works: the authors reviewed Alito’s written opinions in cases where they believe there is no clear controlling precedent. Such cases, say the authors, give Alito leeway and therefore expose his ideological tendencies.

The premise is questionable. Take one example, Alito’s rulings on standing. (Standing, for non-lawyers, is the term for the rules governing when federal courts can hear a lawsuit). The Yale project, citing mostly unanimous decisions like Joint Stock Society v. UDV North America, Inc. and Conte Brothers Automotive, Inc. v. Quaker State-Slick 50, Inc., concludes Alito is ideologically driven to limit access to courts by“construing standing narrowly” when he can.

From my brief review of the caselaw, I accept that Alito tends to take a narrower view of standing than would many Yale law professors. But ideology may not have much to do with it. Another explanation may be that the circuit in which he sits (the Third) doesn’t rubber stamp plaintiffs’ standing theories. There’s much evidence for this: For example, in the last few years, the Third Circuit has controversially denied standing to -- (1) class action plaintiffs suing HMOs under RICO in an opinion by Judge Greenberg (Maio v. Aetna), (2) securities “holders” under the Securities Exchange Act of 1934 in an opinion by Judge McKee (Trump Hotel & Casino Resorts v. Mirage Resorts), (3) health care recipients seeking class-wide monetary restitution from “misleading” health plans under ERISA in an opinion by Judge Roth (Horvath v. Keystone Health Plan E), (4) plaintiffs alleging an “environmental injury” under the Clean Water Act in another opinion by Judge Roth (Public Interest Research Group v. Magnesium Elektron, later overturned by the Supreme Court), and (5) a housing rights group in a suit targeting discriminatory ads under the Fair Housing Act in an opinion by Judge Mansmann (Fair Housing Council v. Main Line Times).

All of these cases were politically and legally controversial. And all but the Fair Housing Council case were unanimous panel decisions. All were cases in which there was no clear controlling precedent. Yet, in each case, the Third Circuit disposed of the standing issue against plaintiffs.

If the Third Circuit doesn’t open the door wide to any plaintiffs who put their name to a complaint, as these cases tend to suggest, then what can we say about Alito’s standing rulings? Nothing juicy, I’m afraid. The fact Alito’s opinions are consistent with trends in his circuit doesn’t tell us much about Alito’s “ideology.” It suggests, instead, that on the standing issue he is in tune the law of his jurisdiction and tries to reach outcomes consistent with that law. Again, that’s what an appeals judge is supposed to do.

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