An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence


Article III of the U.S. Constitution requires standing to sue for federal subject matter jurisdiction over a case. Under the modern test for standing, plaintiffs must show that they suffered some concrete and imminent injury-in-fact as a result of the illegal conduct of the defendant. While many scholars and judges have critiqued the U.S. Supreme Court’s development and application of the injury-in-fact requirement, relatively little attention has been paid to disturbing racial double standards in the Court’s standing jurisprudence. When racial minorities have brought equal protection challenges against programmatic governmental discrimination, the Court has applied standing doctrine strictly. But when white plaintiffs have brought equal protection challenges against racial remediation programs, the Court has continually relaxed standing requirements. This Comment seeks to illustrate and analyze this racial divide by comparing Supreme Court cases raising the issue of standing in the equal protection context. Applying a Critical Race Theory perspective, this Comment ultimately concludes that this racial contradiction in standing doctrine stems from the Court’s modern doctrinal push to uproot de jure racial discrimination and to leave de facto racial discrimination alone. Consequently, this Comment suggests either correcting the resulting double standard in standing requirements or eliminating the injury-in-fact requirement altogether.

About the Author

Raj Shah is a member of the UCLA Law Review, Volume 61, and J.D. Candidate, 2014 at UCLA School of Law.

By uclalaw