This essay is an invited response to Fred Smith's Vanderbilt Law Review article "Undemocratic Restraint." Smith critiques an important trend in the Supreme Court's decisions on standing: the transformation of concepts that had been viewed as judicially-created "prudential" limits on a party's standing to sue into concepts grounded in positive law, such as federal statutes or the Constitution. This essay uses two Supreme Court decisions, which coincidentally came down weeks after Smith's article was published, to highlight some questions and concerns regarding two areas of standing doctrine that Smith examines.

One subject of doctrinal transplantation has been the "zone of interests" test. In its 2013 decision in Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court declared that the zone-of-interests inquiry is a feature of statutory interpretation rather than prudential standing. In its 2017 decision in Bank of America Corp. v. Miami, the Court revisited the zone-of-interests test. By a 5-3 vote, it held that the City of Miami—which sued Bank of America for Fair Housing Act (FHA) violations that led to lost tax revenues and additional municipal expenses—fell within the FHA's zone of interests.

A potential future candidate for transplantation is the adverseness requirement. Several Justices (though never a majority) have argued that adverseness is not merely a prudential consideration; rather it is constitutionally mandated by Article III. In its 2017 decision in Microsoft Corp. v. Baker, the Supreme Court considered whether appellate courts could review a district court’s refusal to certify a class action where the lead plaintiffs—following the denial of class certification—stipulated to a voluntarily dismissal of their individual claims. The majority in Microsoft found a lack of appellate jurisdiction on statutory grounds. According to a three-Justice concurrence, however, there was an appealable "final decision" for statutory purposes but a lack of adverseness placed the appeal outside the bounds of Article III.