ArtIII.S2.C1.6.9.3 Third Party Standing

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Second, as discussed above, the Supreme Court has stated that courts may refuse to allow litigants who have suffered an injury-in-fact to rest their claims for relief on third parties’ rights.1 The Court has characterized such prudential restraints as “not constitutionally mandated” and “designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative.” 2 Although the Court has found prudential standing to be present in several cases,3 it has shown a reluctance to allow litigants to assert the rights of third parties because those parties may not need or wish to assert those rights, and courts prefer to avoid unnecessary decisions on constitutional issues.4 Furthermore, a litigant may be a less effective advocate for the third parties’ rights than the third parties themselves.5

Barrows v. Jackson illustrates the prudential application of “third-party standing.” 6 In that case, homeowners sued a neighbor for the alleged breach of a private covenant forbidding the use and occupancy of homes in the neighborhood by “non-Caucasians.” 7 The Court had previously held that the Fourteenth Amendment forbade a state court from enforcing such racially restrictive covenants against African-American purchasers of real estate through the award of damages.8 However, in Barrows, no African-Americans had appeared before the court to assert their constitutional rights, and, indeed, the Court found that it would have been difficult for them to do so because they were not property owners subject to the covenant.9 But the Court waived the normal prudential standing rule against third-party standing and determined that the defendant property owner could rely upon the state court’s interference with third-party rights in her defense because: (1) she would suffer injury if she lost by having to pay damages for breach of the covenant; and (2) the African-Americans (i.e., the third parties) who would be injured by the enforcement of the covenant were unlikely to be able to assert their constitutional rights themselves.10

Thus, although a litigant may not generally challenge government action on the grounds that it infringes another’s rights,11 it may do so in certain narrowly defined contexts. As this section has discussed, standing may be found when a litigant challenges a statute as unconstitutionally overbroad on its face in violation of the First Amendment12 or when the litigant suffers some injury and third parties whose rights the litigant relies upon face an obstacle to protecting their own interests.13 The Supreme Court has also permitted criminal defendants to challenge their convictions by asserting the rights of persons not before the Court whose rights would be negatively affected by enforcement of the law in question.14 These circumstances are relevant to a prudential standing inquiry as well as to constitutional standing.

Warth v. Seldin, 422 U.S. 490, 499–500 (1975) ( “Second, even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” ). back
Renne v. Geary, 501 U.S. 312, 314, 320 (1991) (holding that a political party could not assert the rights of candidates for nonpartisan political office where “no obvious barrier exist[ed] that would prevent a candidate from asserting his or her own rights” ). back
June Med. Servs. LLC v. Russo, No. 18-1323 slip 4–5 (U.S. June 29, 2020) (plurality opinion) (observing that the Court has “long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations” and has “generally permitted plaintiffs to assert third-party rights in cases where the ‘enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights’” (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004))); Caplin & Drysdale v. United States, 491 U.S. 617, 623–24 n.3 (1989) (holding that a law firm had standing to assert a criminal defendant’s Sixth Amendment rights because it would receive a portion of defendant’s forfeited assets if its Sixth Amendment claim were successful and the Singleton test for third-party standing was met); Carey v. Population Servs. Int’l, 431 U.S. 678, 682–84 (1977) (permitting a contraceptive vendor to challenge a law limiting distribution); Craig v. Boren, 429 U.S. 190, 192–97 (1976) (allowing a licensed beer vendor to assert an Equal Protection Clause challenge to alcohol laws that established different ages for sale of beer to men and women). back
Singleton v. Wulff, 428 U.S. 106, 113–14 (1976) (noting courts’ reluctance to allow litigants to assert the rights of third parties but concluding that physicians had standing to assert their patients’ rights in a challenge to a state statute limiting the circumstances in which the physicians could receive Medicaid reimbursement for abortions). back
Id. back
346 U.S. 249, 258 (1953). back
Id. back
Id. at 254–59 (citing Shelley v. Kraemer, 334 U.S. 1, 18–23 (1948)). back
Id. back
Id. ( “The relation between the coercion exerted on [the respondent property owner] and her possible pecuniary loss thereby is so close to the purpose of the restrictive covenant, to violate the constitutional rights of those discriminated against, that respondent is the only effective adversary of the unworthy covenant in its last stand.” ). back
E.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 (1986) (determining that an individual school board member lacked standing to appeal a lower court decision on behalf of the full school board because he could not “step into the shoes of the Board and invoke its right to appeal” ); United States v. Raines, 362 U.S. 17, 21–23 (1960) ( “[O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” ); Tileston v. Ullman, 318 U.S. 44, 46 (1943) (holding that a doctor who wished to give his patients advice about birth control lacked standing to represent the interests of his patients in a Fourteenth Amendment challenge to Connecticut statutory provisions). back
See ArtIII.S2.C1.6.6.6 Overbreadth Doctrine. back
E.g., Barrows, 346 U.S. at 255–59. See also Campbell v. Louisiana, 523 U.S. 392, 394 (1998) (holding that a White criminal defendant had standing to raise equal protection and due process claims when challenging alleged discrimination against African Americans in the selection of grand jurors); Powers v. Ohio, 499 U.S. 400, 403–04, 411 (1991) (finding that a White man had standing to bring a Fourteenth Amendment Equal Protection Clause challenge to a jury-selection process during which the prosecutor exercised peremptory challenges to exclude seven African Americans from the jury because a criminal defendant may raise the equal protection rights of a juror excluded from service); Holland v. Illinois, 493 U.S. 474, 476–77 (1990) (holding that a White criminal defendant had standing to raise a Sixth Amendment challenge to the exclusion of African Americans from his jury). The Supreme Court has also held that Powers applies in the context of civil litigation. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991). back
E.g., Eisenstadt v. Baird, 405 U.S. 438, 445–46 (1972) (holding that an advocate of contraception convicted for giving a contraceptive device to an unmarried woman had standing to assert the rights of unmarried persons denied access to contraception, as such persons were not themselves subject to prosecution and would unlikely be able to assert their constitutional right to use it). But see Rakas v. Illinois, 439 U.S. 128, 133 (1978) (affirming that “ Fourth Amendment rights are personal rights that may not be asserted vicariously” ). When a criminal defendant challenges a federal criminal statute as exceeding the federal government’s powers and interfering with traditional state powers in violation of the Tenth Amendment, then the prudential bar on third-party standing does not apply. The defendant has an individual interest in the court’s resolution of the federalism question and is not improperly asserting rights that belong to the states. Bond v. United States, 564 U.S. 211, 220–26 (2011). back