Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power

Abstract

I find little to quarrel with in Dean Nichol's critique' of Justice Scalia's opinion in Lujan v. Defenders of Wildlife.2 I base my criticisms of the opinion on somewhat different grounds. I am sympathetic to one version of what Dean Nichol calls Justice Scalia's broader agenda3--reducing the role of the judiciary in making government policy. That agenda antedates Justice Scalia's appointment to the U.S. Supreme Court; it has been ongoing since 1972.4 Many of its central elements have garnered support from every Justice who has served during the last two decades.5 However, Justice Scalia's opinion in Defenders cannot be characterized accurately as part of that agenda. As Dean Nichol recognizes, it seems to be instead the first step in implementing a quite different agenda-reducing the permissible role of Congress in government policymaking. This is the most basic of several criticisms I have of the opinion. I make three main points in this Comment. The first is that Justice Scalia's opinion in Defenders is an insupportable judicial