ArtIII.S2.C1. Representational Standing: Overview

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.

Usually, one may assert only one's interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else.1 In Tileston v. Ullman,2 an early round in the attack on a state anti-contraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held that he had no standing; no right of his was infringed, and he could not represent the interests of his patients.3

There are several exceptions to the general rule, however, that make generalization misleading. Many cases allow standing to third parties who demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson,4 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans—and therefore able to show injury in liability for damages—was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed.5 Similarly, the Court has permitted defendants who have been convicted under state law—giving them the requisite injury—to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question.6 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action—thus satisfying the injury requirement—to represent the rights of third parties with whom the challenged law has interfered with a relationship.7

It is also possible, of course, that one's own rights can be affected by action directed at someone from another group.8 A substantial dispute was occasioned in Singleton v. Wulff,9 over the standing of doctors who were denied Medicaid funds for the performance of abortions not medically indicated to assert the rights of absent women to compensated abortions. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible.10 Following Wulff, the Court emphasized the close attorney-client relationship in holding that a lawyer had standing to assert his client's Sixth Amendment right to counsel in challenging application of a drug-forfeiture law to deprive the client of the means of paying counsel.11 A next friend that is asserting the rights of another must establish that he has a close relationship with the real party in interest who is unable to litigate his own cause because of a hindrance,12 such as mental incapacity, lack of access to courts, or other disability.13

A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him.14 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality.15

Legal challenges based upon the allocation of governmental authority under the Constitution, e.g., separation of powers and federalism, are generally based on a showing of injury to the disadvantaged governmental institution. The prohibition on litigating the injuries of others, however, does not appear to bar individuals from bringing these suits. For instance, injured private parties routinely bring separation-of-powers challenges,16 even though one could argue that the injury in question is actually upon the authority of the affected branch of government. Then, in Bond v. United States,17 the Court considered whether a criminal defendant could raise federalism arguments based on state prerogatives under the Tenth Amendment.18 There, the Court held that individuals could raise Tenth Amendment challenges, because states are not the sole intended beneficiaries of federalism, and an individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . .19


  1.  Jump to essay-1United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986).
  2.  Jump to essay-2318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508–510 (1975) (challenged law did not adversely affect plaintiffs and did not adversely affect a relationship between them and persons they sought to represent).
  3.  Jump to essay-3Tileston, 318 U.S. at 46. But cf. June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2118–19 (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)))).
  4.  Jump to essay-4346 U.S. 249 (1953).
  5.  Jump to essay-5See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for specific performance of a contract to convey property to a black purchaser had standing to contest constitutionality of ordinance barring sale of property to colored people, inasmuch as the defendant was relying on ordinance as his defense); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discriminatory private club could raise rights of black assignee in seeking injunction against expulsion from club).
  6.  Jump to essay-6E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they had a professional relationship; although use of contraceptives was a crime, it was doubtful any married couple would be prosecuted so that they could challenge the statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons were not subject to prosecution and were thus impaired in their ability to gain a forum to assert their rights).
  7.  Jump to essay-7E.g., Doe v. Bolton, 410 U.S. 179, 188–189 (1973) (doctors have standing to challenge abortion statute since it operates directly against them and they should not have to await criminal prosecution to challenge it); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192–197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was obvious claimant to raise issue); Carey v. Population Services Int'l, 431 U.S. 678, 682–84 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting distribution). Older cases support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963).
  8.  Jump to essay-8Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise a Sixth Amendment challenge to exclusion of black prospective jurors, since defendant had a right to a jury comprised of a fair cross section of the community). The Court has expanded the rights of non-minority defendants to challenge the exclusion of minorities from petit and grand juries, both on the basis of the injury-in-fact to defendants and because the standards for being able to assert the rights of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998).
  9.  Jump to essay-9428 U.S. 106 (1976).
  10.  Jump to essay-10Compare 428 U.S. at 112–18 (Justices Blackmun, Brennan, White, and Marshall), with id. at 123–31 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the former four Justices on narrower grounds limited to this case.
  11.  Jump to essay-11Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n.3 (1989). Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 125, 131 (2004), the Court's finding that attorneys seeking to represent hypothetical indigent clients in challenging procedures for appointing appellate counsel had no relationship at all with such potential clients, let alone a close relationship.
  12.  Jump to essay-12See Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); see also Powers v. Ohio, 499 U.S. 400, 411 (1991). The Court has held that a parent-child relationship easily satisfies the close relationship requirement for next friend standing. See Sessions v. Morales-Santana, 582 U.S. ___, No. 15–1191, slip op. at 7 (2017).
  13.  Jump to essay-13See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (rejecting next friend standing for a death row inmate who knowlingly, intelligently, and voluntarily chose not to appeal his sentence); see also Morales-Santana, 582 U.S. ___, slip op. at 7 (2017) (holding that the death of the real party in interest meets the hindrance requirement for next friend standing).
  14.  Jump to essay-14United States v. Raines, 362 U.S. 17, 21–24 (1960).
  15.  Jump to essay-15Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380 U.S. 479, 486–487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doctrine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 (1973); Young v. American Mini Theatres, 427 U.S. 50, 59–60 (1976), and id. at 73 (Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 771–773 (1982). But the exception as stated in the text remains strong. E.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984); Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988).
  16.  Jump to essay-16See, e.g., INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986);Clinton v. City of New York, 524 U.S. 417 (1998).
  17.  Jump to essay-17564 U.S. ___, No. 09-1227, slip op. (2011) .
  18.  Jump to essay-18The defendant, in an attempt to harass a woman who had become impregnated by the defendant's husband, had placed caustic substances on objects the woman was likely to touch. The defendant was convicted under 18 U.S.C. § 229, a broad prohibition against the use of harmful chemicals, enacted as part of the implementation of the 1997 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. The specifics of the defendant's Tenth Amendment argument was not before the Court.
  19.  Jump to essay-19564 U.S. ___, No. 09-1227, slip op. at 10.