1969—In his majority opinion in Allen v. State Board of Elections, Chief Justice Earl Warren launches what Justice Harlan in dissent calls “a revolutionary innovation in American government that goes far beyond” what the Voting Rights Act of 1965 calls for.
Section 5 of the Act requires that states covered by the Act obtain federal approval of any change to any “voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting.” Before the Court were various state laws: One law, for example, authorized county board members to be elected at-large (rather than by district); another required that the county superintendent of education be appointed by the board of education; and a third changed the requirements for independent candidates running in general elections.
Opining that “Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way,” Warren holds that all of these laws are subject to section 5. He thus expands section 5 from the intelligible concept of protecting the right of minority voters to vote to the far more nebulous concept of protecting a minority group’s effective voting power.
1970—“Generalizations about standing to sue are largely worthless as such.” That’s the ominous beginning of Justice William O. Douglas’s unanimous opinion in Association of Data Processing Service Organizations v. Camp, and it gets worse after that.
Douglas takes the Administrative Procedure Act’s grant of standing to a person “adversely affected or aggrieved by agency action within the meaning of a relevant statute” and expands it into a grant of standing to anyone who identifies any interest—whether “aesthetic,” “conservational,” “recreational,” “spiritual,” or economic—that is “arguably within the zone of interests to be protected by the statute … in question.”
As then-D.C. Circuit judge Antonin Scalia will observe in a 1983 law-review article, “It is difficult to exaggerate the effect which this interpretation of the ‘adversely affected or aggrieved’ portion of the APA has had upon the ability of the courts to review administrative action.”