Throughout his career, Scalia argued that limits on the right to sue were a core aspect of the separation of powers. He worried that without strict standing requirements, courts would intrude into the domain of the political branches. Scalia was particularly concerned that courts were making it too easy for individuals and advocacy groups—such as defenders of the environment, consumer groups, and others—to challenge administrative action. Scalia’s answer was to insist on concrete injury as the “indispensable prerequisite of standing.” Only that, Scalia insisted, would keep courts to what he saw as their properly limited role and prevent what he called “an overjudicialization of the processes of self-governance.”

Scalia’s views about standing—spelled out in a famous 1983 lecture—shaped the law even before he joined the Supreme Court. In a backlash to the Warren Court of the 1950s and ’60s , the conservative justices on the Burger Court drew on Scalia’s views, making it harder for racial minorities, victims of police misconduct, and others to vindicate their constitutional rights and challenge abuse of power by the government. As Gene Nichol observed long ago, the Burger Court turned to standing doctrine to “fence out disfavored claims,” repeatedly invoking the “toughest standing hurdles” in cases in which racial minorities had been victimized by the government. As a result, individuals who had previously turned to the courts to remedy systemic injustices—whether housing discrimination or the use of chokeholds by the police—were thrown out of court.

After joining the Court in 1986, Scalia worked to extend these rulings. In 1992, in Lujan v. Defenders of Wildlife, Scalia’s majority opinion rewrote the law of standing, and, for the first time in the nation’s history, struck down as unconstitutional a federal statute that gave citizens a right to go to court to enforce federal legal protections. In Lujan and the cases that followed it, Scalia argued that the Constitution strictly limits Congress’s authority to give individuals a right to sue to enforce federal rights, insisting on proof of a concrete injury as “an essential and unchanging part of the case-or-controversy requirement of Article III.”

Scalia’s views did not carry the day in every standing case—in a host of rulings that expanded the power of Congress to grant standing, he bitterly dissented. But he succeeded in making it harder for individuals to have their day in court to vindicate their federal rights. In 2013, in Clapper v. Amnesty International, Scalia joined a 5-to-4 ruling that threw out a lawsuit challenging the federal government’s program of warrantless wiretapping as unconstitutional. Samuel Alito’s majority opinion explained that the “law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Scalia had been championing this basic argument for decades.