| Schlesinger v. Reservists Committee to Stop the War
(No. 72-1188)
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| Syllabus
| Opinion
[ Burger ] | Concurrence
[ Stewart ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] | Dissent
[ Marshall ] |
| HTML version
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Schlesinger v. Reservists Committee to Stop the War
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE BRENNAN, dissenting. [*]
The "standing" of a plaintiff to be heard on a claim of invasion of his alleged legally protected right is established, in my view, by his good faith allegation that "‘the challenged action has caused him injury in fact.'" Barlow [p236] v. Collins, 397 U.S. 159, 167-168 (1970) (concurring in the result and dissenting). The Court's further inquiry, in each of these cases, into the connection between "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question," Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970), and the "interest sought to be protected by the complainant," ibid., is relevant not to "standing," but, if at all, only to such limitations on exercise of the judicial function as justiciability, see, e.g., Baker v. Carr, 369 U.S. 186 (1962), or reviewability, see, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).
Richardson plainly alleged injury in fact. My Brother STEWART demonstrates this in his analysis of Richardson's claimed right to have the budget of the Central Intelligence Agency published. The claim was not merely that failure to publish was a violation of the Constitution. The claim went further and alleged that this violation deprived Richardson, as an individual, and not as an inseparable part of the citizenry, of a right given him by Art. I, § 9, cl. 7. Moreover, his complaint, properly construed, alleged that the violations caused him injury not only in respect of his right as a citizen to know how Congress was spending the public fisc, but also in respect of his right as a voter to receive information to aid his decision how and for whom to vote. These claims may ultimately fail on the merits, but Richardson has "standing" to assert them.
Similarly, I would hold that respondent Reservists Committee and its members have demonstrated sufficient "injury in fact" to maintain their suit. Their allegation that they are injured as taxpayers, while at first glance seeming extraordinarily difficult to prove, is neither impossible nor, on the basis of this record, made in bad faith. If the Secretary of Defense takes a contrary position [p237] with regard to either of these requirements, it is open to him to move for summary judgment and compel respondents to establish their position. See Barlow, supra, at 175. More stringent requirements, such as the Court's demand that these respondents satisfy Flast's "nexus" requirement, are not appropriate issues for resolution under the rubric of "standing." Since I would find the injury-in-fact requirement met by respondents' taxpayer allegation, I have no occasion to reach the question whether respondent Reservists Committee and its members' allegations of injury to their interests as citizen would be sufficient to confer standing under the circumstances of this case.
Unlike my Brother STEWART, who distinguishes these two cases, I would find that Flast v. Cohen, 392 U.S. 83 (1968), supports the conclusion that these allegations of injury-in-fact are sufficient to give respondents in both cases "standing." Speaking generally of standing, we there sad:
The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court, and not on the issues he wishes to have adjudicated. The "gist of the question of standing" is whether the party seeking relief has
alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
Baker v. Carr, 369 U.S. 186, 204 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue, and not whether the issue itself is justiciable.
Id. at 99-100. [p238] The two-pronged test fashioned by Flast was not a qualification upon these general principles, but was fashioned solely as a determinant of standing of plaintiffs alleging only injury as taxpayers who challenge alleged violations of the Establishment and Free Exercise Clauses of the First Amendment. See Barlow v. Collins, supra, at 170-172. The extension of that test to the very different challenges here only produces the confusion evidenced by the differing views of the Flast test expressed in the several opinions filed today in these cases. Outside its proper sphere, as my Brother POWELL soundly observes, that test is not "a reliable indicator of when a federal taxpayer has standing." United States v. Richardson, ante, at 180. We avoid that confusion if, as I said in Barlow, supra, at 176, we recognize:
[A]lleged injury in fact, reviewability, and the merits pose questions that are largely distinct from one another, each governed by its own considerations. To fail to isolate and treat each inquiry independently of the other two, so far as possible, is to risk obscuring what is at issue in a given case, and thus to risk uninformed, poorly reasoned decisions that may result in injustice. . . .
The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing.
* [This opinion applies also to No. 72-885, United States et al. v. Richardson, ante, p. 166.]