Wednesday, July 03, 2013

Why isn't declining a grant of certiorari sufficient as a "passive virtue": Reflections on "standing"

Sandy Levinson

The classic defense of what lawyers know as the doctrines of standing, ripeness, and mootness were developed by Alexander Bickel, the acolyte, at least in this respect, of Felix Frankfurter, form whom he had clerked, as “passive virtues” that would enable the Supreme Court to avoid taking certain hot potatoes that would generate potentially serious institutional costs for the Court.  The classic example was Naim v. Naim, where the Court altogether dishonestly dismissed for want of a federal constitutional question Virginia's ban on inter-racial marriage.  But the point is that the case came up on appellate jurisdiction; that is, it was ostensibly required that the Court hear the case.  But the Court has managed to liberate itself from almost all mandatory jurisdiction; almost all of their docket is the result of entirely discretionary grants of certiorari.  If they want to duck hard issues, they simply say "no thank you," as they've done consistently, say, with the "state secrets" cases or other cases involving the use of torture by the United States, sometimes as the result of "rendition" to friendly countries.
So, once the Court is liberated, why bother to maintain what appears to all  many of us, independent of our disagreements on a host of issues, to be an incoherent, basically intellectually corrupt set of cases.  This term alone there were Clapper (no standing of journalists who were clearly "chilled" by fear of NSA surveillance to challenge an aspect of the national surveillance state); Fisher (standing on the part of someone who had already graduated from LSU who had no conceivable remedy for her injury, assuming one thinks she suffered one, beyond return of her admissions fee, which the University, by all accounts, was willing to give her);  Windsor (standing, even though the Obama Administration in fact was not challenging the rulings below that ruled DOMA unconstitutional), Perry (no standing. even though California Supreme Court ruled that an important way of maintaining the integrity of the initiative-and-referendum system was allowing organizations that successfully prevailed to defend their position against recalcitrant state officials resisting it).  I doubt that anyone disagrees that clever justices and the oh-so-clever clerks could easily have written opinions demonstrating standing in Clapper and Perry and rejecting it in Windsor and Fisher if that’s what the justices wanted to do.  Why continue to going through this charade whose consequence is simply to feed the already fairly widespread contempt of court? 

As I 've noted elsewhere, Harvard Professor Dick Fallon wrote a wonderful article during the Marbury bicentennial year pointing out that the reality of discretionary cert puts paid to any Marshallian argument that the Court has “no choice” but to decide anything (save for the very rare exceptions).  So why shouldn’t they take cases they think it’s important to resolve on the merits and, if they want to duck issues, simply decline to grant cert.?  Any case they want to hear will always have someone who can be said to have standing (and, almost certainly, will be represented, in the modern era, by firs-rate lawyers who will be able to develop all the legal issues that the Court might be interested in hearing about).  I suppose the only answer is that there are some cases, like Newdow, where declining to grant cert leaves in place a decision that a majority doesn’t like.  They don’t have the votes to say the 9th Circuit was wrong, so they manufacture a totally bogus doctrine that Dr. Newdow has no standing to assert that the state is undercutting his parental authority by foisting religion--in the form of the Pledge of Allegiance--on his vulnerable daughter, even if she maintains a right to avoid saying the pledge and thus exposing herself, every morning, as an outsider. 

I will be participating next month in a panel discussion on Bickel's continuing legacy.  So I truly wonder whether the “passive virtues” have any utility (or validity) once the Court has the degree of discretion it does? 

UPDATE:  Some participants on another listserv site have suggested that I'm being too "SCOTUS-centric," because one point, after all, of a decision like Newdow is to say that no federal court should hear the issue, not only that the Supreme Court should duck it.  That's a good point, but if that's our concern, why not simply return to old-fashioned discussion of "political questions' rather than rely instead on "standing" (or "ripeness" or "mootness") arguments that rarely persuade onlookers and instead tend to generate ever-more cynicism about the intellectual integrity of the justices?  I note that a Rasmussen poll just released found that the approval rating of the Supreme Court is at an historical low, about 30%.  There's some reason to believe that Rasmussen is systematically biased in its sample in favor of conservatives, but one doubts that the poll is completely without interest.  Assuming the biased sample, this may be measuring conservative unhappiness about DOMA.  But does anyone believe that the Court enhanced its reputation by the string of standing cases this term?


Because canonizing all of these labile "principles" permits -- indeed, all but compels -- lower courts to exercise the"passive virtues" by filtering out many these uncomfortable issues (a) without the Mandarins' having to exercise such "passive virtues" themselves and -- perhaps just as importantly -- (b) before uncomfortable truths are ventilated through discovery, before the government (or any other defendant the Court wishes to protect) is forced to take even more uncomfortable positions than "you don't have the right to invoke the courts on these matters," and before the odd maverick lower-court judge makes uncomfortable statements in a published decision (see, e.g., Anna Diggs Taylor's artless but nonetheless brave ruling in ACLU v. NSA). That is to say, it's not just a charade to maximize the Supreme Court's own discretion. It's about keeping certain matters out of the system tout court.

RE Update: That's a good question, but I can't imagine that ducking issues via the political question" doctrine is any more persuasive to onlookers than is invoking standing and the other formerly discretionary doctrines that are now interpolated into Article III. If anything, invoking the political question doctrine is a more transparent dodge -- it nearly gives the game away --whereas marching through the tedious arcana of standing, ripeness, and mootness seem apt (if not designed) to elicit an eyerolling, ho-hum-ing, tl;dr response.

I think Louis Henkin made the case many years ago that there isn't really a "political quetion" doctrine at all, that the cases that use the doctrine are really saying, or should be saying, that nothiong in the Constitution forbids what the political authorities want to do. I haven't kept up with the issue, and maybe later cases don't fit that analysis, but I can't think of any.

The UPDATE cries out for graphs of Presidential, Congress and SCOTUS approval/disapproval polling stats over the years, say, since 1946. The Rasmussen poll on the Court is troubling. Query: Is the Court still the least dangerous branch? (A graph on the Court might also include the number of cases decided in each year.)

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