2025 Hallows Lecture: Resorting to Courts

Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance

Article III of the U.S. Constitution limits federal courts to the resolution of “Cases” or “Controversies.” No principle, the Supreme Court has emphasized, is more fundamental to the judiciary’s proper role in our system of government. The justiciability doctrines, including the doctrine of standing, reinforce foundational tenets of separation of powers and federalism. And they impose on judges an obligation of restraint—preventing the judicial process from being used to usurp the authority of the political branches and states.

This lecture takes those observations a step further. It explores the relationship between the standing limitation on federal court subject matter jurisdiction and the role of speech in the American constitutional design. That relationship manifests itself in many of today’s so-called culture wars, which commonly see parties pursue immediate judicial resolution of consequential and divisive questions rather than seek solutions outside the courtroom through dialogue and discourse.

Culture wars lawsuits—increasingly brought as facial challenges by associational plaintiffs—put pressure on the requirements of Article III standing. Yet where litigation bears directly on novel, difficult issues enmeshed in social controversy, consistent application of these requirements becomes all the more important. With a focus on the role of speech, the lecture offers considerations on all sides of the ongoing debate over the proper and permitted role of the federal judiciary in our representative democracy.

About the lecturer:

The Honorable Michael Y. Scudder is a judge of the U.S. Court of Appeals for the Seventh Circuit. From 2009 until confirmed in 2018, Judge Scudder was a partner in the Chicago office of a large international law firm. From 2007 to 2009, Judge Scudder served in the White House as general counsel of the National Security Council. He also previously served at the U.S. Department of Justice on a national security team and for four years as an Assistant U.S. Attorney in the Southern District of New York. He is a former law clerk to U.S. Supreme Court Justice Anthony M. Kennedy and to Judge Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. Judge Scudder teaches national security law at the University of Chicago and advanced federal jurisdiction at the Northwestern University Pritzker School of Law.

This annual lecture remembers E. Harold Hallows, a Milwaukee lawyer and a faculty member at Marquette Law School from 1930 to 1958 and a justice of the Wisconsin Supreme Court from 1958 to 1974 (chief justice the last six years).