Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article discusses these changes and addresses how they relate to the textualist method of statutory interpretation. The current significance of textualism, which emerged after Justice Scalia became an Associate Justice of the United States Supreme Court, has led Justice Kagan, the appointee of President Barak Obama, to state that “we’re all textualists now.”
The first Part of the Article briefly describes the critical role that Justice Scalia played in the emergence of textualism as a central method for the interpretation of statutes. The Article then considers the rhetoric and legal craft employed by Justice Scalia to accomplish important changes in the law of statutory standing. These changes concern the respective roles that the legislature and the judiciary play in determining who may bring claims in federal court pursuant to the Administrative Procedure Act (APA) and other federal statutes. The second Part of the Article discusses how Justice Scalia quickly and decisively reshaped the nomenclature that the Court applies to this area of the law. By changing the legal terminology from prudential standing to statutory standing, Justice Scalia framed his claim that Congress had sole authority to define the parties who had a right to bring a claim in federal court when the party has Article III standing. Locating this authority in the legislature, rather than in the judiciary’s exercise of its own prudential power, reinforced Justice Scalia’s claim that his textualist method ensured legislative supremacy and limited opportunities for judicial activism.
Despite this claim, Justice Scalia’s other two changes to the law of statutory standing had the effect of constraining by judicial interpretation the scope of statutory standing relative to statutory text and legislative intent. First, Justice Scalia interpreted statutory text that was extremely broad in the legislative grant of statutory standing and intended to allow an action by any party aggrieved by a claimed government illegality to grant statutory standing only to a party who met the zone-of-interests test. Justice Douglas, writing for the Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), identified a wholly new test for what he called “prudential standing,” a test that we know as the zone-of-interests test. Justice Douglas defined this test in order to expand the scope of statutory standing that Congress had provided when it enacted § 702 of the APA. Justice Scalia, writing for the Court in two decisions more than forty years later, pragmatically employed the ahistorical, court-contrived zone-of-interests test to limit the scope of statutory standing defined by Congress in clear statutory text that broadly provided for statutory standing. These decisions added to the legal error that Justice Douglas committed in Data Processing, this time in the service of reducing the scope of standing compared to what Congress had intended and provided in the clear language of the statute. Justice Scalia’s decisions undermine the broader scope of statutory standing defined by Congress in particular statutes.
The second change in statutory standing law was that Justice Scalia, having determined for the Court that the zone-of-interests test would determine whether a party had statutory standing, concluded that the zone-of-interests test, when applied outside the APA context, necessitated a showing that the claimed illegality proximately caused the injury to the person bringing the claim. This proximate cause requirement is not found in statutory text or in legislative history. Rather, Justice Scalia decided that Congress had to be understood to have imposed a proximate cause limit when the zone-of-interests test applies and, at least for now, when the claim is not brought under the APA. This interpretive result is claimed to follow from the prescription of the legislature, rather than the prudent activism of the judiciary. Contrary to this claim of textualism, the decisions in these cases show that Justice Scalia was willing and able to be an activist judge when the text enacted by Congress did not align with his own views of good policy. The decisions in these cases show the limits of textualism and provide strong reason to doubt the claims that that the preeminent advocate of textualism made about the virtues of that interpretive method.
Healy, Michael P., "The Claims and Limits of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions" (2019). Law Faculty Scholarly Articles. 691.