In the wake of the Supreme Court’s Dobbs decision overturning Roe v. Wade, a group of pro-life doctors and medical associations sued the Food and Drug Administration, challenging the agency’s approval and regulation of the abortion drug mifepristone. The plaintiffs argued that the FDA had not sufficiently accounted for medical complications suffered by women using the drug to terminate pregnancies and that subsequent decisions to loosen the rules governing mifepristone prescriptions would increase the frequency of such complications.

The case swiftly reached the Supreme Court and was dispatched without the merits having been reached. Whatever the FDA might have done wrong, and however sincere the plaintiffs’ “legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” the plaintiffs lacked standing to raise their claims, Justice Brett Kavanaugh wrote for a unanimous Court. The plaintiffs could not demonstrate that the FDA’s actions were or would be the cause of any injuries to them and so could not satisfy the constitutional requirements of standing.

FDA v. Alliance for Hippocratic Medicine is one of several cases in recent years brought by conservative plaintiffs advancing conservative causes to the Court, only to founder on the shoals of standing. Also this term, in Murthy v. Missouri, the Court concluded that social-media users lacked standing to seek an injunction barring federal officials from pressuring social-media platforms to suppress or deplatform unpopular speech as “disinformation.” Whatever improper conduct officials had engaged in to suppress speech in the past, Justice Amy Coney Barrett explained, no plaintiff could show the imminent threat of government action necessary to justify an injunction.

AHM and Murthy are not aberrations. In recent years the Court has turned away conservative challenges to the Indian Child Welfare Act, the Affordable Care Act, and Biden-administration immigration policies as well, all on standing grounds. If some hoped (or feared) that a conservative Supreme Court would loosen the standing barrier against policy-oriented litigation, they were sorely mistaken.

That a conservative Supreme Court insists on enforcing traditional rules of standing should be no surprise. Stringent standing rules have been a core element of conservative jurisprudence for decades. Current doctrine was shaped by the late justice Antonin Scalia as much as by anyone else, and it has also been a priority of Chief Justice Roberts, who sees it as a way of preventing political activists from using the courts to fight policy battles that belong in Congress or at the ballot box.

The idea of standing is grounded in Article III of the Constitution, which limits federal-court jurisdiction to “cases” and “controversies.” The idea is that an individual litigant should have a sufficient stake in the outcome of a legal dispute to justify the exercise of federal jurisdiction over his claim. “In more pedestrian terms,” as then-judge Antonin Scalia explained in a 1983 law-review article, “it is an answer to the very first question that is sometimes rudely asked when one person complains of another’s actions: ‘What’s it to you?’” It is not enough to care deeply about a particular question. One has to have a sufficiently tangible stake if one wants one’s arguments heard in a federal court.

Justice Scalia crystallized the current test for standing in Lujan v. Defenders of Wildlife, a 1992 case in which the Court turned away environmentalist litigants challenging a Reagan-administration policy that limited application of the Endangered Species Act to projects overseas.

Lujan set forth a three-part test. First, a plaintiff must have suffered an “injury in fact” that is both concrete and particularized as well as actual or imminent. What can count as an injury is broad, but it must be particularized to the plaintiff and not speculative or far off in the future. Second, that injury must be “fairly traceable” to the conduct being challenged and not the consequence of other actions taken by a third party. And third, there must be a sufficient likelihood that “the injury will be redressed by a favorable decision.” In other words, the plaintiff must get something from a favorable decision beyond the warm fuzzies of the court’s agreement.

While the Lujan plaintiffs sincerely cared for endangered species and could identify species they thought might be harmed by the change in policy, they could not show how they, specifically, would be affected in a particular way. The loss of “someday” hypothetical opportunities to see identified species in their native habitat was not enough to show that any injury was actual or imminent.

In practice, this test makes it relatively easy for those subject to government action to file suit. If the government is threatening to tell you what to do or to take your stuff, the standing inquiry is cut and dried. Thus a drug manufacturer has standing to sue the FDA if its drug application is denied. When, however, the government’s regulation or treatment of a third party is at issue, standing may be harder to demonstrate. In the AHM case, plaintiff doctors were not complaining that the FDA was regulating them or preventing them from providing care consistent with their beliefs. Rather, the complaint was that the FDA’s failure to regulate others (the manufacturers of mifepristone) would lead to downstream effects that the plaintiff doctors found disagreeable. Further, just as the plaintiffs in Defenders of Wildlife could not show how they, in particular, would be affected by the government’s change in policy, the plaintiff doctors could not demonstrate a sufficient likelihood that they would be directly affected by a potential increase in mifepristone-related complications. And insofar as the plaintiffs were concerned that they could be forced to facilitate medication abortions in cases of mifepristone-related complications, the Court noted that existing conscience protections under federal law are a shield against such harms.

While grounded in Article III, standing doctrine as conceived of by Justice Scalia was also about Article II and the separation of powers. Specifically, Justice Scalia was concerned that loose standing rules make it too easy for activists and others to file suit seeking legal judgments to resolve matters that are more properly handled through the policy process. He was further concerned that Congress had magnified this problem by enacting broad citizen-suit provisions, such as are found in most environmental statutes, that make it easy for activist groups to second-guess executive-branch policy and enforcement decisions. This is particularly true where Congress, in effect, deputizes individual litigants to act as freelance private attorneys general enforcing federal law through private lawsuits.

Justice Scalia’s formulation has guided federal-court requirements of standing for over three decades, but not without controversy. That most academic commentators are skeptical of his formulation should not be surprising. That some conservative jurists have called for a rewrite, on the other hand, may be more significant.

Justice Clarence Thomas has expressed concern in several recent opinions that the Court has been too rigid in its application of the standing formula, particularly with regard to statutes that authorize private individuals to file suit to advance statutory rights enacted by Congress. Pointing to Founding-era history, Justice Thomas argues that, where a cause of action exists under common law or an express statutory grant, the Constitution does not require showing an injury beyond the violation of a legal right. Thus Justice Thomas broke with the Court’s other conservatives in TransUnion v. Ramirez, arguing that individuals whose private financial data were mishandled by credit-reporting agencies in violation of the Fair Credit Reporting Act had standing to sue, even if the agencies’ conduct did not lead to a tangible loss, because Congress had expressly authorized a cause of action.

Some conservative judges on lower courts have begun raising more-heretical questions about Justice Scalia’s canonical formulation of standing law in Lujan. Judge Kevin Newsom on the U.S. Court of Appeals for the Eleventh Circuit, for instance, has challenged Lujan’s originalist pedigree. In a recent concurring opinion and subsequent writings, Judge Newsom has argued that existing doctrine — and the injury-in-fact requirement in particular — is neither “properly grounded in the Constitution’s text and history,” “coherent in theory,” nor “workable in practice.” Like Justice Thomas, Judge Newsom believes that where Congress creates a cause of action for an individual to vindicate a statutory right, the standing inquiry should be satisfied. And while there may be a need to prevent activist litigation from intruding on executive-branch prerogative, Judge Newsom argues, the injury-in-fact requirement at the core of Lujan is the wrong way to do it.

It is too soon to know whether these critiques will prompt a reconsideration of standing doctrine, but there are signs of a shift. The justices seem increasingly uneasy with some aspects of standing, such as the so-called special solicitude given to state litigants and the use of “associational standing” to avoid having to identify specific individuals who meet the Lujan requirements. Some justices, Samuel Alito in particular, have also raised concerns that the Court has not consistently held all litigants to the same standard. Dissenting in the Murthy case, Justice Alito suggested that the Court had been more forgiving of speculative injury claims when blue states sought to sue the Environmental Protection Agency or the Census Bureau. An alternative formulation, such as that advocated by Justice Thomas or Judge Newsom, might be less vulnerable to such concerns.

Standing law can be frustrating for litigants because it can take some issues out of the courts altogether. As Justice Kavanaugh noted explicitly in AHM, it is possible that no one has standing to challenge the FDA’s failure to regulate mifepristone (or any other drug) more stringently. It is not clear how those who do not produce, sell, use, or prescribe a drug can be harmed by the FDA’s failure to regulate it, particularly given the lack of a citizen-suit provision in the Food, Drug, and Cosmetic Act. But under current doctrine, that is no reason to relax the standing bar. “The assumption that if these plaintiffs lack standing to sue no one would have standing is not a reason to find standing,” Justice Kavanaugh explained in AHM, quoting previous court decisions. “Rather, some issues may be left to the political and democratic processes.” Article III courts are places to resolve tangible disputes over rights and obligations, not the place for hashing out every major political dispute, and it appears the current Court wants to keep it that way.