The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Justice Thomas Takes Aim at Associational Standing

In his AHM v. FDA concurrence, Justice Thomas suggests the Court needs to rethink associational standing and questions whether it comports with Article III.


Today the Supreme Court held unanimously that anti-abortion doctors lack standing to challenge the Food and Drug Administration's decisions to loosen the regulation of mifepristone. Justice Thomas wrote separately to reiterate his opposition to third-party standing and raise questions about the Court's long-standing acceptance of associational standing (and universal injunctions too). Given current pressure to rethink aspects of standing doctrine, his opinion is worth some attention.

Justice Thomas begins his opinion restating his objections to third-party standing.

Our third-party standing precedents allow a plaintiff to assert the rights of another person when the plaintiff has a "close relationship with the person who possesses the right" and "there is a hindrance to the possessor's ability to protect his own interests." . . . . Applying these precedents, the Court explains that the doctors cannot establish third-party standing to sue for violations of their patients' rights without showing an injury of their own. . .  But, there is a far simpler reason to reject this theory: Our third-party standing doctrine is mistaken. As I have previously explained, a plaintiff cannot establish an Article III case or controversy by asserting another person's rights. . . .. So, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients.

He then goes on to note that associational standing (as opposed to organizational standing—in which an organization asserts standing to defend its own interests as an organization) can be seen as a species of third-party standing, and has some of the same problems.

Associational standing raises constitutional concerns by relaxing both the injury and redressability requirements for Article III standing. It also upsets other legal doctrines.

First, associational standing conflicts with Article III by permitting an association to assert its members' injuries instead of its own. . . . Article III does not allow a plaintiff to seek to vindicate someone else's injuries. . . . It is difficult to see why that logic should not apply with equal force to an association as to any other plaintiff. I thus have serious doubts that an association can have standing to vicariously assert a member's injury. . . .

Second, our associational-standing doctrine does not appear to comport with the requirement that the plaintiff present an injury that the court can redress. . . . The party who needs the remedy—the injured member—is not before the court. Without such members as parties to the suit, it is questionable whether "relief to these nonparties . . . exceed[s] constitutional bounds." . . . Because no party should be permitted to obtain an injunction in favor of nonparties, I have difficulty seeing why an association should be permitted to do so for its members. Associational standing thus seems to distort our traditional understanding of the judicial power.

As Justice Thomas notes, one way courts have addressed the concern about providing relief beyond the remedy to which an individual plaintiff would be entitled is through universal injunctions, but that does not really solve the underlying Article III concern.

Our precedents have provided a workaround for this obvious remedial problem through the invention of the so called "universal injunction." Universal injunctions typically "prohibit the Government from enforcing a policy with respect to anyone." . . . By providing relief beyond the parties to the case, this remedy is "legally and historically dubious." . . .  It seems no coincidence that associational standing's "emergence in the 1960s overlaps with the emergence of [this] remedial phenomenon" of a similarly questionable nature. . . . Because no party should be permitted to obtain an injunction in favor of nonparties, I have difficulty seeing why an association should be permitted to do so for its members. Associational standing thus seems to distort our traditional understanding of the judicial power.

Reliance on associational standing and universal relief, Thomas notes, "subverts the class-action mechanism" by providing a work-around to class-action rules and requirements and "creates the possibility of asymmetrical preclusion."

Associational standing may be justified and reconcilable with Article III constraints but, as Justice Thomas notes, such justification and reconciliation is not to be found in the Court's jurisprudence: "Despite its continued reliance on associational standing, the Court has yet to explain how the doctrine comports with Article III."

Justice Thomas is not the only one raising questions about associational standing. Andrew Hessick and Michael Morley make the case in opposition in a forthcoming University of Chicago Law Review article titled, appropriately enough "Against Associational Standing."

Justice Thomas concludes:

No party challenges our associational-standing doctrine today. That is understandable; the Court consistently applies the doctrine, discussing only the finer points of its operation. See, e.g., Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 199–201 (2023). In this suit, rejecting our associational standing doctrine is not necessary to conclude that the plaintiffs lack standing. In an appropriate case, however, the Court should address whether associational standing can be squared with Article III's requirement that courts respect the bounds of their judicial power.