Powell, Scalia, and Roberts v. SCRAP (and SCRAP)
We, the members of SCRAP, were conscious of “standing to sue” and how to describe and to prove it long before we decided to sue the United States and the Interstate Commerce Commission in April and May 1972. As my book To a High Court: Five Bold Law Students Challenge Corporate Greed and Change the Law makes clear, we deliberately talked through the forms of injury we sustained through the actions of the Interstate Commerce Commission and how each of us could prove that injury. Those allegations are set out in our very first petition submitted to the Commission in December 1971. And, again, in the lawsuit, the complaint upon which the Supreme Court relied. The complaint and the amendment to it form the appendix of To a High Court.
What was only marginally apparent to us then was that the battle to manipulate and use “standing”—as Justice William Brennan wrote, “to slam the courthouse door”—had begun. We were in that battle, and SCRAP the case and SCRAP the group became historic and elevated symbols of it. Why? Because we were law students, the crafters of two lawsuits, the students who challenged seemingly powerful and self-certain corporate forces and law firms with no deference to or fear of their so-called maturity or their imperative to protect corporate interests. In play, in that battle, was and continues to be not only the words of the Constitution⎯that the court may consider “… all Cases … and … Controversies”⎯and their meaning, but also the generational and cultural insistence of ensuring that law students, and others, deferentially stay in their place.
Lewis Powell, who was appointed by President Richard Nixon to the Supreme Court in 1972, did not sit on the SCRAP case because the law firm within which he had been a partner before his appointment represented the Railroad industry. It was Powell, however, with discreetly exercised influence, who added the concrete ideological framework to methodical corporate assertiveness in a now famed memorandum in 1971 to the United States Chamber of Commerce. Two essential focuses for Powell’s advocated change: the judiciary (including the appointment of properly channeled judges to provide more protection to corporate interests) and university faculty and properly channeled students to provide more deference to their elders and to corporate imperatives. Powell’s influence on adding new, non-constitutional constraints on “standing to sue” was felt immediately after his appointment. He was on the Supreme Court until 1987.
In 1983, then–United States Court of Appeals Judge Antonin Scalia wrote “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 Suffolk U. L. Rev. 881. He added yet additional constraints, which were intended to (and did) elevate the political flexibility⎯at times a pretext for arbitrariness if written by anyone else⎯to judge who and what he and others wanted to review. To Scalia, the Framers of the Constitution seemed not to understand what they had created in Article III. He homed in on SCRAP as a decision that needed his articulated form of humiliation and on SCRAP as a model for other students who needed to be discouraged. “I anticipate,” Scalia pronounced, “that the Court’s SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure.” He relied on decisions written by Justice Powell. Scalia was appointed to the Supreme Court in 1986 and remained until 2016.
John Roberts Jr., then in private practice and emerging as a fit example of Powell’s hoped-for channeling, expressed his forceful agreement with Powell and Scalia with respect to their judicially created constraints on standing to sue. Implicit in his agreement, and in the Powell-era Supreme Court decisions he relied on, was that the decision in United States v. SCRAP was, finally, no longer a viable precedent. After his appointment as Chief Justice of the Supreme Court, and seemingly content with his understanding of “standing to sue,” he confronted an unexpected reality. In his dissenting opinion in Massachusetts v. EPA, 549 U. S. 497 (2007), where the majority concluded that the Commonwealth of Massachusetts had “standing to sue” and cited SCRAP to support its position, Roberts revealed something more cultural and deeply personal than mere disagreement with the majority’s decision or SCRAP as precedent. “Today’s decision,” he wrote, “is SCRAP for a new generation.” Justice Scalia joined in Chief Justice Roberts’s dissent.
Numerous writings concerning “standing to sue” or United States of America v. SCRAP are available. Here are two by the author of To a High Court and others on standing to sue and Chief Justice Roberts:
In 1996, “the Supreme Court Historical Society selected an Ad Hoc Committee of distinguished legal scholars and Supreme Court practitioners to determine the most significant oral arguments heard by the Supreme Court” during the period when Warren Burger was chief justice. The Committee’s selection included the oral argument in United States v. SCRAP. See www.supremecourthistory.org