Document Type

Working Paper

Publication Date

9-30-2016

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Corporate Governance Network; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Management Research Network

Abstract

The Supreme Court is often accused of using standing doctrine to manipulate its docket If standing is a method of docket manipulation then we might also expect the Court to find standing present despite standing problems when it wants to reach the merits of a case But the absence of a standing discussion is an example of manipulation only if there is no standing Many cases lack standing discussions because such discussions are unnecessary standing is obvious In other cases the absence of a standing discussion may in fact reveal a Court ignoring standing to reach the merits If such manipulation is found to be widespread it would mean that a majority of Supreme Court justices are regularly ignoring the constitution to exercise power that they do not haveTo see whether this is a common strategy for the Court a more general examination of the docket is required This Article uses the cases decided by the Roberts Court to identify two primary sets of cases that would permit the accusation of manipulation cases where the Court addressed standing implausibly found it present and reached the merits and cases where the Court avoided discussing standing yet the court or courts below discussed standing extensively suggesting that standing was at issue in the case Examining the Roberts Court cases reveals only one Implausible case and eighteen Avoidance cases only one of which appears to be manipulative Thus evidence for this kind of manipulation at least in the Roberts Court is scant

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