Lujan V. Twombly: Standing Pleading, And The Importance Of Order
Lea Brilmayer*and Caledonia McQuilkin Feldman* | 27.6 | Citation: Lea Brilmayer and Caledonia McQuilkin Feldman, Lujan V. Twombly: Standing Pleading, And The Importance Of Order, 27 U. Pa. J. Const. L. 1228 (2026).
The Supreme Court justifies Article III standing requirements by arguing they further its long-held mandate to hear only “cases and controversies.” This Essay argues the Court has another, relatively unexplored use for standing doctrine: changing the order in which issues in a case are decided. Because the criteria for standing have evolved to overlap with a case’s substantive questions, courts can employ the “jurisdictional” doctrine to decide substantive issues before they otherwise could.
This Essay demonstrates how the “reordering” function of standing evolved as a means of blocking nontraditional plaintiffs—those with extrajudicial objectives—from using the judicial system for goals the Court thinks inappropriate. Standing is not the only context in which the Court has allowed the judiciary to decide merits issues in the early stages of litigation in order to impede litigants’ nontraditional goals. The same shift is visible in recent changes to federal plausible pleading jurisprudence. In both pleading and standing contexts, doctrine evolved to serve a certain, traditional vision of the judicial function. The lawfulness of this issue reordering, however, is unclear. Certain uses of the practice carry the potential to violate the constitutional requirements of separation of powers and due process.
This Essay explores the limits of the Court’s ability to constitutionally edit judicial procedures without congressional approval. It probes why revising the order of issues in lititgation, without other changes, so effectively advances a certain vision of the judicial function. And it considers why courts deem only some motives for litigation permissible.
*Howard M. Holtzmann Professor Emeritus of Law at Yale Law School.
* Judicial law clerk at the Supreme Court of New Jersey.