“We derive consolation from the reflection that your judgment will discern what is right.”

— Letter from Chief Justice Jay to President Washington

Aug. 8, 1793

“Generalizations about standing to sue are largely worthless as such.”

— Justice William O. Douglas

Data Processing Service v. Camp, 1970

In the early days of the Republic, our first president, George Washington, recognized that he would need the advice of intelligent officials around him. Seeking to expand the circle from which that advice would come, he wrote to John Jay, chief justice of the United States Supreme Court, inquiring whether it would be appropriate for him to ask the court, from time to time, for its opinion on certain legal matters. It made sense to do so, he reasoned, as he already did that with members of his cabinet.

Jay consulted the associate justices, and wrote back to the president. Although Jay noted that the members of the court did “exceedingly regret every event that may cause embarrassment to your administration,” he noted that the separation of powers between the branches of government made it unwise for the court to issue advisory opinions to the executive branch, and that the Constitution only explicitly gave power to the president to seek such opinions from other executive branch officials.

Thus was born the “case and controversy” requirement, so named because of the language of Article III of the Constitution. In modern litigation, the case and controversy requirement has been held to mandate that a person have “standing” to bring a legal action in federal court. But the concept of standing has been somewhat of a moving target over the decades, with different congressional actions placing different rules on who had a right to sue under the legislation.

In general, the standing requirement mandates that a litigant show three things. First, an “injury in fact” — an invasion of a legally protected interest which is concrete and particularized, and “actual or imminent,” not “conjectural” or “hypothetical.” Second, a causal connection between the injury and the conduct complained of — the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Third, it must be likely, as opposed to merely speculative, that the injury will be “redressed by a favorable decision.”

Thus, a decade ago when a parent in California sued his child’s school district claiming that requiring his daughter to recite the Pledge of Allegiance violated his constitutional right to raise her under the religious beliefs he desired, the United States Supreme Court never reached the merits of the case. Instead, they ruled that because he wasn’t the child’s custodial parent, he hadn’t suffered an “injury in fact” and didn’t have a legally protected interest. Since he didn’t have “standing” to bring the lawsuit in the first place, the court didn’t have to rule on the question and could simply dismiss his complaint.

Last week a law professor at Catholic University in Washington, D.C., made headlines when he announced that he was going to run for president. He isn’t seriously trying to win the office but, rather, he’s trying to win standing. He says that he believes that Ted Cruz is not a “natural-born citizen” (Cruz was born in Calgary to an American mother and a Cuban father). Several other lawsuits challenging Cruz’s citizenship have been dismissed because ordinary citizens don’t have a “controversy” with a presidential candidate. The law professor believes that if he’s running as a candidate, then he has standing to bring the challenge. It is unclear whether his minor candidacy will be determined to give him the legal authority to bring the challenge.

George Washington seems to have been satisfied with John Jay’s reasoning more than two centuries ago, as he didn’t push the issue and stopped seeking advisory opinions. The justices said that they were confident that Washington had good judgment, and that he would make wise decisions without their input. But their position served as the basis for a modern requirement that continues to be a major consideration in court cases 223 years later.