Hastings Constitutional Law Quarterly


S. Todd Brown


Prudential standing, it seems, is the latest target in the Roberts Court's effort to "bring some discipline" to jurisdictional and pseudo-jurisdictional concepts. During the Court's last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts' prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing either, but it recognized that the question is complex and left its resolution for another day.

These opinions raise three obvious questions. First, what is the distinction between a constitutional limit on the courts' jurisdiction and the prudential basis for declining jurisdiction? Second, if courts have a "virtually unflagging obligation" to hear and decide cases within their jurisdiction, as the Court stressed in Lexmark and Driehaus, is "judicial prudence" ever a legitimate basis for refusing to do so? Third, is the third party standing principle properly viewed as part of standing doctrine?

This Article is the first to examine these questions in detail and, accordingly, provides a unique basis for understanding the courts' various understandings of the meaning of "judicial prudence" and "prudential standing." And given the Court's suggestions that these questions are open to further inquiry, this Article is a timely and valuable contribution to the existing literature.