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.”1
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.
INTRODUCTION
This Article describes and assesses Justice Antonin Scalia’s decisions in Lexmark International, Inc. v. Static Control Components, Inc.,2 and Thompson v. North American Stainless, LP.3562 U.S. 170 (2011). These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; they have expanded the range of cases to which the zone-of-interests test applies; and they have 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.”4
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.5 This Part describes the rule of law and externality claims presented on behalf of textualism.6 It also discusses how textualism has cast doubt on some canons of construction7 and has rejected the other two conventional approaches to statutory interpretation, intentionalism and purposivism.8
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)9 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. Justice Scalia maintained that the new terminology reflected a doctrinal focus on the legislature and the legislature’s own determination of the parties authorized to bring an action in federal court claiming a statutory violation. Although the changed nomenclature appears to conform to the claims of textualism, the change should, instead, be seen as a disingenuous effort to present, as legislatively determined, standards for statutory standing that the Court itself has defined, without attending to either the statutory text or the intent of Congress.10
The third Part of the Article discusses how Justice Scalia’s decisions for the Court have significantly expanded the scope of application of the zone-of-interests test. In order to provide context for understanding Justice Scalia’s unlikely embrace of this modern test for APA standing, the Article provides the historical background of statutory standing before the APA and that statute’s codification of that body of law. The Article then describes how Justice Douglas, writing for the Court in Association of Data Processing Service Organizations, Inc. v. Camp,11 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. This Part then discusses how Justice Scalia, writing for the Court in two decisions, pragmatically employed the ahistorical, court-contrived zone-of-interests test to limit the scope of statutory standing defined by Congress, by ignoring 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 broad application of the zone-of-interests test that Justice Scalia has championed reflects neither the text of the relevant statutes nor the intent of the enacting legislatures.
The fourth Part of the Article considers how Justice Scalia, having defined the zone-of-interests test as the default test that determines statutory standing for all federal statutes, regardless of date of enactment, began the work of narrowing the scope of that test by finding a new limit to the parties who are arguably within the zone of interests. It begins by discussing how the Court’s zone-of-interests test came to be applied as the Court moved to a textualist interpretive approach. The test had emerged when the Court was comfortable identifying interests arguably protected by a statute based on legislative intent, discernable through text and legislative history, and on statutory purpose. Indeed, the test appeared to limit standing only when legislative intent indicated to the Court that Congress had not intended to protect a particular interest. The textualist method, which rejects legislative intent as a basis for interpretation, had to rely on only inference and effect to determine arguably protected interests. The method therefore had the effect of expanding statutory standing using the zone-of-interests test. In this context, Justice Scalia determined that a new limit, a proximate cause requirement, had been enacted by Congress as part of an understanding of the background law. Justice Scalia accordingly found a legal limit to narrow the statutory standing defined by Congress, notwithstanding extremely broad statutory text and the absence of an indication that Congress did not intend to protect the interests presented by the plaintiffs.
This new proximate cause limit may allow the Court’s conservative members to narrow the scope of statutory standing in cases when a textualist applying the traditional zone-of-interests test would likely be unable to limit statutory standing beyond the limits defined by Article III. In short, Justice Scalia sought to narrow the scope of statutory standing by defining new limits that he claimed Congress should be understood to have enacted in the absence of having previously enacted text sufficiently clear to overcome the Court’s new presumptive meaning of text. This judicial activism contrasts starkly with the broad claims of the objectivism of the textualist method and the claim of the new nomenclature that the statutory standing doctrine does not include a prudential component and merely follows Congress’s directions regarding the parties who may bring a statutory claim. Finally, the Court’s rationale supporting this proximate cause limit also appears to apply to the APA itself, so it may be only a matter of time before the proximate cause limit on the zone-of-interests test also applies in the APA context.
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