an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Am I the only one who thinks all nine justices collectively
wrote both opinions in Hollingsworth v. Perry and then drew straws to see which
five would be in the majority and which four in the dissent. If not, would the following be a fair examination
question: “Explain the voting alignment in the Proposition 8 case in light of
what the justices in the majority and the justices in the dissent had
previously written on standing.”
Much ink will be split over whether the opinions on standing
in Hollingsworth and Windsor make sense.
The better question is whether traditional standing doctrine makes any
sense in the context presented by the attacks on Proposition 8 and DOMA (the
below channels a very fine commentary written by Richard Epstein many years
ago). Consider two possible cases. In the first, the Federalist Society and the
American Constitutional Society work up a feigned case to test the
constitutionality of the state ban on same-sex marriage in the state of
Terrapin. The briefs are written and
oral argument presented by the best advocates in the country, all of whom passionately
believe in their positions. In the
second, the couple seeking to be married are two out-of work lawyers, both of
whom received a D+ in their constitutional law class when they attended a tier four law
school. Having big egos and limited
funds, they represent themselves. Indifferent
Terrapin officials assign an overworked state attorney to defend the state
law. Which is the better vehicle for
determining the constitutionality of same sex marriage?
These observations suggest that courts should not worry
about standing if there are many people who would have standing to raise and
defend the identical constitutional issue the court wishes to resolve and every
reason exists for thinking that the actual parties before the court (and the
42% of the global population that has submitted an amicus brief) have provided
appropriate perspectives on the constitutional issues. With respect to Proposition 8, this means
that the Court should have denied standing if the justices were prepared to
rule only on the constitutionality of same-sex marriage in California. But no point exists for deciding
Hollingsworth on standing if the real issue was the constitutionality of
Think of some death penalty analogies. Five minutes before announcing their decision,
the justices learn that the capitally sentenced prisoner has died of natural
causes. If the decision is that capital
punishment is unconstitutional, does any good reason exist for raising the
Of course, very good reasons existed for not deciding the
constitutionality of same-sex marriage at this time and place. In a forthcoming article on what I call “constitutional
yo-yos,” I argue that the Supreme Court ought not to make major decisions by
5-4 votes when the justices in the majority have very good reason for thinking
that the next judicial appointee is likely to join a new majority overruling
that decision. But if that or something
similar was on the mind of the Roberts Court or the “standing five,” the proper
decision was cert dismissed as improvidently granted. Standing should be left for cases really
motivated by standing.
Kennedy, Sotomayor and Alito held for standing in each case.
Thomas liked the dissent for its state rights noises, including "the people" of the state. In DOMA, he thought government didn't have standing since the Administration supported Windsor. But, in Prop 8, "the people" to him had standing to challenge.
Scalia and Roberts didn't want standing in either case. There was not only a generalized interest in Windsor, but standing failed for a separate reason.
Kagan and Breyer felt that Windsor and the Administration were in conflict, there was individual standing there and not just a generalized interest. That was the case in CA.
If individualized standing is not the rule any more, I guess we can just change things. The argument in CA specifically is that their initiative system sets up a strong enough interest. Debatable.
If the person died, the case is moot. There is no grounds to decide any other question.
Here's what I don't get. Surely if Kennedy wanted to decide the constitutional issue -- either in favor of a right to gay marriage or opposed to it -- he could have found four addition votes to support his position, either the four liberals or the four conservatives, depending on which way Kennedy wanted to go.
But the court didn't reach the constitutional question -- suggesting that Kennedy didn't want to reach the question. BUT if that's the case, how does Kennedy end up in the dissent?
For different reasons, perhaps, a mix of conservatives and liberals didn't want to decide the merits. Scalia and Roberts, e.g., on principle has been against broad standing for years. This gave Kennedy a free pass to support a broad view of standing without having to worry about the merits question.