Thursday, June 27, 2013

Standing Still

Mark Graber

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 same-sex marriage.

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 standing question?

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.


Is there a suggestion that all nine also wrote the dissents as well? I think not. Nor do I think that all nine wrote the decisions.

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.

As an "overworked state attorney," I resent the implication of this post:-)

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

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