Docket management works.

Justice Scalia's dissent is one version of a familiar judicial trope: that the recognition of a particular type of claim will "open the floodgates," potentially overwhelming lower courts and perhaps even the Supreme Court itself. 281 Recent scholarship, however, has persuasively argued that the particular version of the "floodgates argument" offered up by Justice Scalia is, in fact, the least normatively defensible one.

Professor Marin Levy recently offered a taxonomy of floodgates arguments made by Justices since the 1940s. She generally classifies them as expressing (1) "interbranch concerns"; (2) "intersystemic concerns"; and (3) "court-centered [concerns]." 282 She further subdivided interbranch concerns into those that worry about burdening the executive branch 283 and those that have the courts encroach on the legislative branch. 284 Intersystemic concerns she also subdivided into concerns about taking too many cases from state courts 285 and placing too many cases or obligations in or on state courts. 286 Finally, she distinguished between [*140] court-centered concerns in which the Court worries that "a given holding will unleash a flood of new claims - particularly frivolous claims," 287 and those that could flood the courts with what she terms "standard claims," 288 or those "cases in which the merits of the claims in the flood were not in doubt." 289

Justice Scalia's Wyoming dissent would be properly classified as expressing a court-centered concern that meritorious DCCD would flood the courts and - if the Court's original jurisdiction is invoked by states suing other states - perhaps the Supreme Court itself. Justice Scalia implied that complaints the Oklahoma statute was unconstitutional had merit because he readily conceded that Wyoming coal producers would easily have standing to challenge the discriminatory law. 290

Assuming that applying a stringent zone-of-interests standing test in DCCD (and other constitutional) cases would reduce their number, stem any incipient flood of cases, and otherwise promote judicial economy, is that reduction desirable? Defensible?

Professor Levy has her doubts and offers a number of reasons why court-centered concerns about judicial volume are suspect. First, such concerns invoke the "self-regarding or even "self-interested'" reason for not hearing cases "that the federal courts will have additional cases to decide (which is, of course, precisely their official obligation)." 291 Second, "it is unclear just what provision in the Constitution could justify using workload concerns as an independent basis to alter substantive law or decline to hear a case." 292 In addition, Article III seems to grant Congress - not the judiciary - the power to reduce volume by alteration of the courts' jurisdiction. 293 Another commentator put it bluntly: floodgates claims "simply lack[] a proper basis in the law." 294

We think that any analogous attempt to justify the retention of zone-of-interests standing in constitutional cases in the name of judicial economy likewise "needs some sort of affirmative normative justification - a [*141] justification that the justices have yet to offer." 295 Prudential standing rules generally close the courthouse door to plaintiffs who have satisfied Article III standing in the name of vague and undertheorized notions of judicial "prudence," which to us are as self-regarding as floodgates arguments and similarly lacking in constitutional foundation. Moreover, if there is to be any prudential withdrawal of jurisdiction from classes of cases, it seems like Congress is the constitutionally appropriate branch to do the withdrawing.

Finally, Levy noted that the judiciary already has tools at its disposal to manage its caseload. The Federal Rules of Civil Procedure permit summary judgment to quickly resolve cases whose facts are not in dispute. 296 Courts can also sanction attorneys who bring frivolous claims. 297 Moreover, the Court has recently tightened pleading requirements in Bell Atlantic Corp. v. Twombly 298 and Ashcroft v. Iqbal, 299 which enable courts to dispose of more cases at earlier stages of litigation. 300 In light of these "legitimate options for managing caseload," Levy concluded, "the Court [should] shy away from using caseload as a reason to shift the direction of the law" to avoid an increase in volume. 301