Standing for Democracy: Is Democracy a Procedural Right in Vacuo? A Democratic Perspective on Procedural Violations as a Basis for Article III Standing

Authors

Helen Hershkoff, New York University School of Law
Stephen Loffredo, City University of New York School of Law

First Page

523

Document Type

Article

Abstract

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in vacuo,” the Court calls it—does not constitute Article III injury, and so the right holder is barred from seeking redress in a federal court. This is true, the Court says, even in cases in which the “procedural right” at issue is a statutory right to participate in public decision-making. Conceding for present purposes that standing requires a showing of a particular and concrete injury, this Article argues that a congressionally conferred right to participate in the processes of self-governance has value in and of itself, and its infringement should be treated as Article III injury even if the alleged violation does not cause financial loss or damage to some other, non-procedural interest of the right holder. The Court’s devaluation of congressionally conferred procedural rights in its standing doctrine not only has diminished opportunities for democratic practice, but also has destabilized political institutions that support democratic values. Overall, the Article seeks to reorient standing doctrine in ways that support participatory norms as well as intrinsic process values that serve as guardrails of democracy.

Recommended Citation

Helen Hershkoff & Stephen Loffredo, Standing for Democracy: Is Democracy a Procedural Right in Vacuo? A Democratic Perspective on Procedural Violations as a Basis for Article III Standing, 70 Buff. L. Rev. 523 (2022).
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol70/iss2/1