Bradford C. Mank, Judge Posner’s “Practical” Theory of Standing: Closer to Justice Breyer’s Approach to Standing than to Justice Scalia’s

Abstract

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing is closer to Justice Breyer’s “realistic threat” standing test than to the conservative and constitutionally grounded standing jurisprudence of Justice Scalia, although Justice Breyer’s pragmatism is more precedent-oriented than Judge Posner’s. Ultimately, Justice Breyer’s efforts to liberalize existing Article III standing doctrine may prove more fruitful than Judge Posner’s approach of abolishing constitutional standing and replacing it with his proposed alternative “practical” standing test.