In the 1992 case Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, et al., the U.S Supreme Court ruled that a party has standing to challenge an affirmative action program if it can demonstrate that it is able and ready to bid on contracts but a discriminatory policy prevents it from doing so on an equal basis. The city had enacted an ordinance requiring that 10% of public contract dollars be awarded to businesses owned by African Americans. The Northeastern Florida Chapter argued this was racial discrimination and violated their rights under the Equal Protection Clause. Initially, lower courts dismissed their claim for lack of standing because they could not prove injury as they hadn't applied for any specific contract which they would have received in absence of ordinance. However, Supreme Court reversed these decisions stating plaintiffs need not prove certainty or even probability but only possibility that removing barrier might benefit them competitively.

In the dissenting opinion for Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, Justice Scalia argued that there was no standing to sue because the plaintiff could not demonstrate a concrete injury. He contended that since it was unclear whether any member of the petitioner organization would have been awarded a contract but for Jacksonville's Minority and Women Business Enterprise (MWBE) program, they had not suffered an "injury in fact." Furthermore, he stated that even if such an injury were identifiable, it would be speculative at best as to whether striking down this particular ordinance would redress their grievance. According to him, without these two elements - concrete harm and likelihood of redressability - there is no Article III case or controversy and thus no jurisdiction for federal courts.